Tag Archives: probate

My Aunt Just Died. Can I See the Will?

mourning-108781_150Dear Liza: My wife’s Aunt just died. We went to the funeral because they had been rather close and she wanted to represent her mother’s side of the family. While attending there was a passing reference to how she and some other members of her family were in the Will. What should we expect at this point? Whose obligation is it to notify us? Do we have specific rights in this matter? I’m sorry to hear about your Wife’s Aunt. And all of the questions you are asking are such good ones!  Rules vary a bit state to state, but the general idea is that the person who has custody of the Will is required to lodge that Will with the probate court in the county where your Wife’s Aunt lived.  In California, where I practice, this is supposed to be done within 30 days of the death.  Once the Will is lodged (which means filed with the court), it is a public document, so you, your Wife, and anyone else can get access to it.

If your Wife’s Aunt had sufficient assets to require a probate proceeding, again this amount varies from state to state,  the executor named in the Will would petition the court to open a probate proceeding. This will require publication in a newspaper in the town the Aunt lived in — the idea is that probate is a public proceeding and publication gives notice to creditors who may want to file a claim against the estate.  Also, all of the Aunt’s heirs and beneficiaries would be notified of the probate, and, if anyone objects to the appointment of the executor or the validity of the Will, they can file their objections with the court.

If the Aunt’s assets fell below the limit for a probate proceeding, and here’s a list of the limits for various states, then no probate proceeding needs to be opened, but the Will should still be filed.

Can I See the Will?

Will being signedDear Liza: My adult son just passed away.  I would like to know whether, when his Will is probated, I will be able to see a copy?  My condolences on your loss.   Your son’s Will must be filed in the probate court in the county in which he died as part of the probate process. Once it is filed, it is public record and you can request a copy from that court. I don’t know where you live, but here’s how it works in the Santa Clara County Superior Court, where I live, and the process should be similar where you are.

Recovering Stolen Property in Probate

Dear Liza: I have a sister who came into my father’s house after he passed away and took  the only valuable item in the house.  My grandmother gave it to my father over 30 years ago.  It was in the house as long as I can remember.  I strongly protested and requested for her to return it back to my father’s estate since.  No positive response as to date.  It has been now over 2 years and we are not on talking terms. I have just been appointed as the administrator of my father’s estate. What is the legal solution of resolving this situation? As the administrator of the estate, you have a fiduciary duty to collect all assets owned by the estate.  I don’t know what state you live in.  In California, where I practice, the Probate Code allows you to file a petition with the probate court that requests the court to issue an order to your sister requiring return of the valuable object to the estate.  If the court agrees with your petition, it can issue that Order.  Enforcing the Order, though, is another matter.  (Your sister may just return the object; but, than again, she may not!) I suggest you consult a probate attorney in your area about drafting such a petition.

What Do I Put In a Living Trust?

Dear Liza:  I am trying to prepare a living trust on behalf of my father.  He owns his home and vehicles outright and also has two bank accounts.  I am the POD beneficiary of all of his accounts, as well as being a secondary signer on his checking and savings accounts.  My confusion comes from not knowing what assets should be put in the living trust.  Should it just be the home, since that has the highest value?  Or should the cars and bank accounts also be included?  Or can everything but the house be designated in the pour-over will that I also intend to create? Your father’s living trust has just one purpose: to allow his estate to avoid probate upon his death.  If your father’s assets are owned by the trust, not by him, when he dies, then his estate won’t need to go through probate.  Not all items are subject to probate, though: retirement accounts, life insurance policies and bank accounts with designated beneficiaries (that’s what a POD account is), go directly to the named beneficiary. Cars can be transferred via the DMV, and so don’t need to go through probate either. So, for your Dad, that leaves his house. You should transfer legal ownership of the house to his trust by filing a trust transfer deed with the county.  When you record the deed, you’ll also need to file a Preliminary Change of Ownership Form (PCOR).  This form tells the county assessor what kind of transfer just happened; the assessor wants to know if they can raise property taxes on that property, which they can’t, because a transfer to or from a living trust is NOT a change of ownership under Proposition 13. That pour-over Will is just a backup for your Dad. If he doesn’t transfer his house to the trust, and then dies, the Will says transfer whatever property he owned at death to this trust  (that’s the pour-over part). But, if the value of that property is more than $150,000, you’ll need to go through probate to make the transfer.  Put another way, the Will makes sure that all of your father’s assets get distributed as directed by the trust, but it won’t help his estate avoid probate first.

 

 

 

Estate v. Trusts, what’s the difference?

Dear Liza: What distinguishes an Estate from a Trust? A person’s estate is all of their property owned at death.  If they have a Will, that document states who inherits the estate.  If they die without a Will, state law determine who will inherit their estate.   In both cases, if they have enough assets, a probate court has to supervise the settling of the estate.  A trust is a legal agreement in which a person (called a Grantor) states that one or more people (called Trustees) hold the Grantor’s assets for certain people (called the beneficiaries) subject to certain duties and the terms of the agreement.  The most common type of trust is called a revocable living trust, but there are others.  A person may set up a living  trust to hold certain of their assets (like their house) during their lifetime, and then give those assets to others at their death. Assets held in the living trust do not go through probate, which is why most people set them up.

But, that person almost certainly owns other assets in their own name (like their everyday checking account, their car, and their tangible personal property). Those things are part of that person’s estate, not their trust.  They would ordinarily have a special kind of Will (called a pour-over Will) that says that all of these things should be added to their trust upon their death. That way, there’s just one set of instructions about who gets what.

Selecting Professional Executors

Hello Liza, My husband and I need to update our wills, they are terribly out of date.  Our dilemma is around the question of who should be Executor/Co-Executor of the estate. Obviously we would be the executors of one an others estates, however, if something were to happen to both of us, we need a third party Executor/Co-Executor.  We have no obvious relatives, or even close friends that we feel could ask to be an Executor.   We’ve understand that a law firm, bank, financial planner, etc.can act as an Executor (or co-Executor).  Our question is, what is the financial obligation for doing so?  Trust companies, trust departments of banks, and individuals, called professional fiduciaries, can serve as the executor of your estate.  There’s no up front fee for nominating an institution or professional to serve in that capacity. They would charge the estate a fee for their services if they are appointed to serve after the death of the second of you.  Often, these fees are a percentage of the estate. If your estate goes through probate, your executor is awarded statutory fees based on state law, which are usually a percentage of the value of the estate.  Attorneys sometimes serve in this capacity, but, at least in the state where I practice (California) there are strict rules about doing so, because in the past unscrupulous lawyers wrote themselves into client’s documents to generate future fees. Financial advisors often cannot serve due to conflict of interest rules in their companies, but some can.  I would advise you to ask your local bank or financial advisor what their fees would be for this service, or if they can recommend anyone in your area who could serve.

Trusts and Pour Over Wills

Dear Liza,  My husband and I are having a disagreement about how to set up our living trust. (We are using online trust software.) He says that our will designates how to disperse the trust, after both of us die and the two designated trustees who are in charge of the trust will need to follow the will’s direction and that the trust is merely a holder of property and we don’t “need” to add all the beneficiaries to the trust document, that the will suffices. I say that we need to designate all the beneficiaries in the trust itself and clarify that all the property in the trust, unless specifically designated otherwise, will be inherited equally by our six children and that the will is for designating who gets the red pot or the carpet, etc., that sort of thing. Who’s right? So, one of the really nice things about being an estate planning attorney is that I hardly ever have to weigh in on marital disputes. On this one, though, I’m on your side. As a general rule, a living trust is designed to hold your property that would otherwise be subject to a probate proceeding at the death of the second of you–usually your house and your large brokerage and bank accounts. The assets in that trust pass by the terms of the trust itself. The ‘Trustees can’t follow the instructions in the Will, they have to follow what the trust says.

 The Will, in this scenario, is designed to transfer any assets that you owned at death that weren’t in the trust into the trust at that point. That’s why this Will is often called a ‘pour-over’ Will– like the saucer under a teacup, it picks up the property you’ve left outside of the trust and pours it into the trust (the cup) after your death. Often, too, your tangible personal property (jewelry, furniture, red pot, clothes, etc) are distributed under the terms of the Will, but sometimes these assets also pass into the trust to be distributed there.  So, make the trust the document that contains your wishes for the distribution of your estate, and let the Will just do the cleanup job for you.

Small Estates: No Probate Necessary

Dear Liza: If there is no or very little property left under a will (because almost all was left under a revocable trust), and there are no known outstanding debts, is it necessary to file the will with the probate court (New York)?  If it is necessary, are probate court proceedings necessary? Check with the probate court in your county (called Surrogates Court in New York) as for Will filing requirements.  But it doesn’t sound like you’ll need to open a probate. Most states have some way for small estates to bypass a full-blown probate proceeding. In New York, if the property left is worth less than $30,000, you can settle the estate with what’s called a summary probate proceeding. Here’s a link to more info.  In other states, like California, if the total value of property is less than a certain amount, you can transfer the assets using what’s called a Small Estates Affidavit, after waiting for a certain number of days after the death.

Stuff in the House: Tangible Personal Property

Dear Liza: My mother is 79 years old and is on social security.  She and her brother own a house together.  At this point, I really don’t care if her brother has control of the property.  But I do care if the contents of the house are legally given to him.  Does he have rights to the contents of the furniture in the house?   Does my mother need a Will and would that Will prevent her estate from going into probate?   Your mother’s furniture and furnishings are what’s called “tangible personal property.” This is lawyer-speak for all the stuff in her house: pots, pans, rubber bands, and the couch. That property will pass to you and your siblings if your mother executes a simple Will and gives her tangible personal property and any other assets she owns to her children.  If the house is owned in joint tenancy, the surviving joint tenant (your uncle) would own the property upon your mother’s death, by what’s called “right of survivorship.”  The house passes to him because of the way he and your mother owned it.  But the tangibles, and anything else your mother owned other than the house, would pass to her kids via her Will.  If all she really has at this point are those tangibles, no probate would be required because states exclude small estates from the necessity of a probate proceeding.  Nolo offers a simple Will that would do the trick.

What if there’s no Will?

Dear Liza: My father passed away last fall and I have not received any notification of a Will.  I am estranged from my family and my brothers have refused to tell me the name of any attorney or executor involved with the estate, and have refused to tell me if there is a Will.  Is there any way to demand this information?  There are state laws that require disclosure to you in certain circumstances, and if your family isn’t cooperating, those provide you the best chance to figure out what is going on.  If your father died and did have a Will, the Will is supposed to be lodged with (filed with) the superior court in the county in which your father died by the executor within a certain period of time (which varies from state to state, but is 30 days in California).  Once filed, the Will is a public record and you can get a copy by requesting it from the probate court.  If there is no Will and your father owned property worth more than a certain amount (this also varies state to state, in CA it is $100,000 now and will be $150,000 as of January 1, 2012) the estate has to go through probate before anything can be distributed, unless your father had a surviving spouse.  Probate is a court supervised settling of the estate: the Will is proven to be valid, the creditors are paid, the assets are appraised, and the estate is settled.  If a probate proceeding is opened, you are required to get notice of it, as a surviving heir.  Here’s a good summary of the California probate process.  But, if your father died without a Will, and had less than the minimum required for probate, I’m not aware of any state disclosure laws that would provide you with information about his assets.  If your father died without a Will,  even if there’s no probate, you would, as a surviving heir, be entitled to a share of his assets, but enforcing that without family cooperation will be difficult.