“Probate” is a court-supervised legal process that happens after someone dies. The purpose of probate is to make sure that the debts and taxes of the person who died are paid, if possible, and that the deceased’s assets are distributed according to how he or she intended.
- Assets: generally, only the assets belonging solely to the person who died are probated. Other assets can often be transferred outside of probate, such as real property held in survivorship (your deed will say “survivorship”), many assets with beneficiary designations such as retirement accounts and life insurance and assets held in a trust. These are just a few items on a long list.
- What starts the probate process? You file the deceased person’s will with your local county probate court. Then, a timeline begins ticking where you file certain documents within certain timeframes, creditors have a certain deadline by which they need to respond if the deceased had debts, etc.
- Do I need an attorney? It depends. If real property (house, land) is involved then hiring an attorney is highly recommended. If there are few assets, no real property, then perhaps an attorney might not be necessary. The attorney’s fees are paid by the estate.
- How long will the probate process take? It typically takes about nine months but can take longer if certain taxes are owed or if there is a will contest.
- What will I have to do as the Executor? File the will with the probate court, gather and safeguard the deceased’s assets, have assets appraised, pay final bills, and distribute assets.
Contact me if you need guidance or representation through the probate process at email@example.com.
- “I’m not wealthy so I don’t have an estate”: Everyone has an estate. Estate planning is about what you own, not just what everything is worth. If you have a car, a house, a bank account, or anything, you have an estate. Estate planning encompasses how you plan for the distribution of your assets. Estate planning can be a simple will, or it can be complicated trusts.
- Pets. Legally, pets are your personal property. As with all property, you should plan for what will happen to them if you die. Obviously this takes on critical importance with pets, since so many pets end up in cages in shelters when their owners become incapacitated or when they die. Include instructions for the care of your pet in your will, or set up a pet trust.
- Designation of agents, naming of executors and trustees. Most clients do not want to “play favorites” with naming their children as agents to powers of attorney, executors in a will, trustees to a trust, so they want to name all three (or however many) children as “co-“ agents. Under some states’ laws, co-agents can act independently of each other without requiring signatures on everything of, say, all three children. This can still be a nightmare. Financial institutions prefer one person for their own liability reasons. Unless there’s an odd number to break a tie, disagreements can hamper efforts to care for an incapacitated parent or deal with estate matters. If all three signatures are required, this can be burdensome if all three children live in separate states. Choose one child—typically the closest geographically and most responsible financially—then list other children as successors. (Choosing a guardian for your children is crucial also. See this important post.)
- Buried or cremated? Where? Besides arguments over the distribution of belongings, the other main creator of arguments is decisions surrounding burial, cremation, and cemetery location. Be absolutely clear in your estate plan about what you want. Do you want buried? If yes, in what cemetery? Do you want cremated instead? If yes, do you want your ashes scattered (and where), or stored in an urn (and with whom)? Fights occur because of cemetery location first, since extended family want you in your hometown even if you’ve lived away for decades. Disposition of your body is the second cause of fights, in my experience. Some people are abhorrent to thinking of a loved one decomposing in a grave, or being reduced to ashes in an oven. Finally, if you choose cremation and want your ashes scattered, be sure your wishes are legal. The wish to “throw my ashes up in the air as you’re going down Space Mountain at Disney World” is not legal.
Contact me at firstname.lastname@example.org to discuss your will or trust, or planning for your pet.
- You have no estate plan! I cannot think of a reason why any adult should not have at least a Last Will and Testament, durable power of attorney, and advance directives (healthcare documents: living will [do you want artificial life support?] and healthcare power of attorney). If you die or become incapacitated without having any of these documents, state law controls what will happen, not you (through your documents) or loved ones. This could cause unnecessary and unexpected costs, delays, and loss of privacy.
- If any of these have occurred to you or, if married, to your spouse: marriage, death, birth, divorce, second marriage. These occurrences call for a review of your estate plan. Not reviewing your will and/or trust after any of these events could lead to unintended beneficiaries or fiduciaries.
- Speaking of fiduciaries…review the people you designate as fiduciaries in your documents, such as executor of your will, trustee of your trust, guardian of your children, agent in your powers of attorney, to name a few. Are they still alive? Are they still capable of serving? Do you still want them to serve?
- Review your beneficiaries. Review who you listed to inherit from you. Are they still alive? Do you still want to bequeath to them, or add additional beneficiaries? You should definitely review life insurance and retirement plans and other assets that have beneficiary designations, since the person you name on such a designation will inherit regardless of what your estate plan states.
- Your current plan is more than a decade old. There have been many tax and other changes that could affect older plans, but a major change with my practice is that my clients now plan for their “digital assets.” What happens to your pictures on Shutterfly, or your Facebook and LinkedIn accounts? What happens to money in your etsy or ebay store’s PayPal account? Do you want your spouse to have access to your Facebook account at your death? Or your emails? These “assets” should be reviewed, and you should consider what you want to happen to them at your death.
- Trust funding. There have been so many people who have created a trust plan but did not fund the trust, which meant at death the trust was useless. You must fund a trust, which means you put assets into the trust—typically by re-titling or deeding assets from you personally, to you as trustee of your trust. You can fund while living, or set it up so that this funding occurs at your death.
- Beneficiary becomes disabled. If a beneficiary has become disabled, or you wish to provide for a beneficiary who is disabled, then it is paramount that you discuss special needs planning, such as a special needs trust, with your attorney. Leaving assets directly to a disabled beneficiary could jeopardize certain benefits they might receive, such as Medicaid.
If you would like to discuss your estate plan, contact me at email@example.com.
You have died, so your survivors are already grieving. No one wants to “tie up loose ends” and take care of standard post-death things such as getting your death certificate, distributing your possessions, selling your house, etc. These five ways will almost ensure that their job is made worse.
- Die without a will. Dying without a will is called dying “intestate.” Without a will directing what goes where, the person in charge of administering your estate needs to distribute according to statute. This process could be easy, or could be difficult, but will almost definitely be more of a hassle. If you have minor-age children, quadruple the “hassle quotient.” Now the Court will need to determine who cares for your children (guardian) with no guidance from you–the person who knows best who the guardian should be.
- Have a trust prepared but do not fund it or put assets in it. If you wisely have a revocable living trust prepared to, among other things, avoid probate, and you fail to re-title or deed the assets to your trust, then these assets will need to go through probate. (This is not true if held in survivorship deed.) I have seen probate estates opened just to probate a house or other deeded or titled property when the deceased had a trust prepared, but the trust was “empty”(unfunded).
- Fail to designate a point person to hold passwords to social media, email and other accounts. Survivors might want access to your pictures, or to let others know you have passed. At one point one company that stored pictures online would not let a surviving husband access his wife’s account. Her account happened to contain almost all of their childrens’ pictures from birth. For a professional with a LinkedIn account, notifying colleagues of your death might be critical to clients or matters. In some circumstances a court order can lead to accessing the account. Lessen the workload of your survivors by leaving a list of accounts and passwords in a secure place with a trusted person.
- Fail to leave instructions regarding cremation or burial. This is one area that can turn amicable survivors into feuding adversaries. Some people have strong feelings against being cremated while others have strong feelings against being buried. Families often argue over which cemetery will be chosen, or where ashes are to be stored or scattered. Do your family members a favor and specify these instructions.
- Neglect to provide for the care of pets. Who will care for your dog, cat, horse, or other pets if you die? Leaving a relative to distribute your assets and close your accounts is enough work without also leaving it up to him or her to find homes for your pets, or to be put in the heart-wrenching position of having to take them to the pound or shelter. Leave provisions for pets in your will or have a pet trust prepared.
In my previous post, “Just married, no kids–do we need a will?” I advised that you might not need a will under certain circumstances. One circumstance, in my opinion, necessitates not only a will but a living trust: having a minor child. If you have just a will, your minor child would inherit everything at age 18 from his or her deceased parents. Very few 18 year-old young adults would be capable of managing money from an inheritance, let alone saving it for college and a secure future.