Tag Archives: Wills

Getting Good Advice When You Are The Beneficiary

Will being signedDear Liza: After dealing with an unexpected death of my spouse my head is still spinning.. My spouse was very private after a divorce  and we kept our affairs separate. Now the Will, of which I was unaware, allows me to stay in our home and if I choose to leave or pass it goes to her children. The attorney who handled the will  said I have control of what happens;

1) I can stay in house till death and take 20% of non probate

2) I can take 1/3 of elective share and no house

3) Or I can select make children offer to buy house based on actuarial tables and 20% of non probate.

How do I get that info to make a good decision? Will says to maintain house in good repair, so does that mean I have to put another $20K for a new roof? I’m sorry that you have to make such important choices and were taken by surprise by them, on top of the grief that comes with losing a spouse. Here’s my advice: hire an attorney to represent you, as the beneficiary under the Will. You need someone who can advise you on your options and explain to you what the Will means — not just in regard to what “good repair” means, but also as to what your elective share rights are, for a start (these are determined by state law).
Please ask that attorney how a Will can offer you twenty-percent of “non-probate” assets, as these generally are assets that pass by beneficiary and are not controlled by a Will at all. If your spouse named you as the beneficiary of her retirement assets or if you owned property with her as a joint tenant, these assets would pass to you by virtue of that, not by the Will at all.

Excluding Someone From Your Will

Will being signedDear Liza:  I am helping my friend make a Will. It’s very simple, with one heir. She wants to make sure her brother, who is her only living relative and from who she has been estranged from since they left home (she’s 75 ) is not able to challenge the Will.  She wants to specifically exclude him in the Will. Is there wording for this and is it necessary? It is very nice of you to help your friend draft her Will.  The best way to make sure that her brother can’t challenge the Will is for her to be explicit about excluding him.  She can state simply that she is deliberately leaving nothing to her brother, for reasons know to him, or something to that effect.

As her brother (not her spouse or a child), he can’t make an argument that he has a legal claim to her estate simply by reason of their relationship to each other, however, it never hurts to make it QUITE clear that you are excluding someone if that is important to you.  In addition, your friend should be careful to properly sign her Will before witnesses as required under her state’s laws.  If she has no other legal heirs than her brother, the legal challenge that he might make is simply to invalidate her Will altogether (then inherit as her only legal heir since she would then have died without a Will at all)–so, she should be sure to have the witnesses be able to state that she had the mental capacity to make the Will and that she was under no duress to do so.

Assets left by beneficiary designation are NOT part of the estate passing under your Grandmother’s Will

old-lady-107404_640Dear Liza: My grandmother passed away peacefully at 97 in February.  I am the executor of her will.  She had changed her will, legally, several times depending on who had made her mad at the time.  Instead of changing it again, she made me the sole beneficiary on some cd’s and mutual funds.  In her will, she left $15k or 15%, whichever was less to my half sister.  Do I have to count the funds that were left to me specifically as part of the estate? Your grandmother sounds like she was pretty sassy.  The assets that were left to you directly by beneficiary designation DO NOT count as part of the lesser of 15% or $15K gift your grandmother made to your half sister.

Only the assets that are governed by the Will count for that calculation and are considered to be part of the “estate.”  The assets left to you by beneficiary designation are separate from the assets that will pass to beneficiaries under your grandmother’s Will. If your grandmother’s Will has to go through probate, the assets that pass by beneficiary designation are not part of the probate estate, either.

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.

Planning for incapacity

Dear Liza: My dad recently passed away and he and my mom had no will.  I am the only child and we have had all the bank accounts changed to my moms name and me as beneficiary but I don’t really know where else or what else (will or power of attorney) I should get.  Now that your mother’s just got you to take care of her if she gets sick, you should absolutely get her to sign a Durable Power of Attorney for Property and an Advance Health Care Directive. Both documents can name you as her Agent, the person who can pay her bills or make medical decisions if she’s unable to do so.   You said that she’s healthy now, and that’s great, but all of us get sick now and then and accidents do happen.  A Will is also a good idea, since that will make it easier for her to leave you her assets without your having to go through probate. (When one spouse dies, probate’s not usually necessary.)  All of these documents can be done inexpensively at www.nolo.com. Here’s the link to the Durable Powers of Attorney forms.

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.

What to Expect From Your Attorney

Dear Liza, I live in Wisconsin and met with an attorney on November 16, 2011, to discuss updating existing wills and powers of attorney for healthcare and property for my husband and myself.   It has been over three months since we met, and while I am ignorant of the ins and outs of the legal process, this seems an excessive amount of time to wait with no word.  How long is a reasonable period to wait for a draft of my will, and how should I approach my concerns with her? I am so sorry to hear that you’re having this sort of trouble. I think that you should discuss your concerns with her directly. Call her up. Ask her to call you back to discuss this. Tell her that you don’t want yet another email. Tell her that you need to see drafts within two weeks. Remember that YOU are the client and your attorney needs to be responsive to your concerns. If you aren’t happy with her, get a new lawyer.  You are completely within your rights to hire someone who is more responsive and to ask your first attorney to forward your client file to your new lawyer. As for what’s reasonable…well, it’s not that I haven’t occasionally been swamped myself, but I think two to three weeks from the initial consulation is a reasonable time to expect to see an initial draft, or at least to be contacted by your attorney with an apology for being late on the drafts. Good luck.

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.