If she’s wants to avoid probate and the associated expenses, she SHOULD work with an estate attorney now. If she dies without a will and properties in several estate, she will likely have probate in each state where she holds property.
I have a question somewhat related to this topic. A few months ago, DH and I (finally!) had our wills done, including powers of attorney, HIPAA forms, etc. We received the signed original documents (our sigs plus the attorney’s and the witness and the notary) all tabbed and organized in a notebook, and also received a DVD with PDFs of all the documents on there.
My question is, where do we keep all this? We have a small fireproof safe at home; the notebook wouldn’t fit in there, but the documents and the DVD would. We do not have a safe deposit box (and I understand you shouldn’t keep your original will in a safe deposit box, anyway). The safe is the kind that has a key; we have two keys. Second question is, where do we keep the keys?
Many people will have the attorney hold originals of the key documents.
To MidwestDad3, I think a lot of people don’t understand what “probate” is. It’s just the court oversight of the distribution of a deceased person’s assets. It happens when there is a will, but it also happens when there is no will. The only time it doesn’t happen is when the assets have been distributed by some other means while the person is alive, such as into a trust, or if all the assets were jointly held, and pass automatically.
@Hopeful820
I just saw your question. Joint ownership = Joint Tenancy which typically means that the survivor of the two owners will get the account upon the death of the other joint owner but it’s possible there are some strange twists in obscure state laws (though very unlikely). You should verify that your account is a JTWROS account.
In that event, all the surviving owner will need to furnish is a death certificate in order for the account to be retitled to the surviving owner.
Just remember that every time you have a “new account,” the TOD provisions are in place and valid, which means that your documents are in order. Keep copies of what you send to the financial institution with your estate papers (and account files) or print out what you have filled out online.
Remember also that these TOD arrangements makes it easier for your survivors to GET ownership of the accounts without having the accounts go through probate. If your accounts are large enough to worry about estate taxes,
or if you want restrictions on how your assets can be spent by the beneficiaries, then you’ll need other estate planning measures.
@MidwestDad3
If the person dies without a will, FL intestacy laws will govern. There is no “probate” as such because probate refers to the filing of a will to prove that it is the valid last will and testament of the deceased.
But because there will be assets requiring transfer, including real estate title changes, there will be some type of court administration required. If there is real estate in more than one state, then that’s an added headache. I believe that’s when Living Trusts are typically advised so that title to real estate in more than one state is held by one Living Trust.
The only real reason to admit a will to probate (i.e., actually file it with probate court to prove its validity, appoint the executor, etc.) is when there ARE assets that will require the action of an executor to settle.
For example, ILs had some joint accounts and individual accounts for which they did not have TODs in place. Mutual fund company, credit union and bank all required Letters Testamentary showing executor had power to close account, etc. To obtain Letters Testamentary, we had to probate the will of the surviving spouse.
When my mom passed away, the will said everything went to my dad. Still had to appear in probate court because they have real estate (beyond primary residence ) in both names. This policy may vary by state.
Also, to the extent your state probate code allows it, most wills typically appoint Independent Executors. Once the will is “probated” - a one-time appearance in court filing the will with a prescribed Q&A by the attorney asking the executor some standard questions about the deceased (residency, etc.) and the validity of the will - the IE is allowed to take practically all subsequent action to settle the estate. That’s why being the IE is typically a compensated job (if it’s not a family member or a thankless one). Of course, the IE is also often a/the beneficiary. There is no “court supervision” and the only other requirements are (typically):
(1) publication of public notice that decedent’s will has been filed for probate
(2) mailing of certified notice to all beneficiaries named in the will along with a copy of the will admitted to probate (for obvious reasons)
(3) a filing of the inventory (assets and debts) of the estate
That has been our experience with both ILs’ wills. Note that all these steps required legal representation in our case because it is not possible in TX to represent yourself in probate court. It may be true in your state also and most families use the same lawyer who drafted the will to probate the will. We obtained different counsel because of the problems in the original wills and trust drafting.
In straightfoward cases, the only time probate court gets involved is if there is a dispute or other problem.
@CountingDown
Yes, real estate title transfers are a different animal. That’s why living trusts are advised for real estate, so that the Trustee of the LT can act to convey the property without having to probate the will.
Check your state law on real estate title transfers upon the death of one owner. Apparently some states allow TOD provisions on real estate deeds. But, of course, any changes to title documents should involve some investigation, preferably with good counsel.
Attymom-- it was a miracle that my parents even got wills executed. My dad would never set up a living trust. Apparently the probate part was a formality with my mom’s passing, with forms and questions similar to what you just described. Not sure what will happen when he passes away, though he has talked to DH (who’s an atty, but not T&E, and not admitted in my my dad’s state).
TBH, there isn’t much of an estate, but Dad wants to leave a house to one of my sisters, and that will NOT go over well with my other sibs, as its value will be exceed a 1/5 equal share. DH has discussed this with my dad, but noone’s saying what has been decided, which is perfectly appropriate AFAIC in terms of confidentiality between Dad and DH. My dad is a stubborn cuss – but it is out of my hands. (For the record, I am going to give my share to other family members – the dollars involved are not significant, but will mean much more to my sibs than to me.)
@CountingDown
Your situation illuminates the distinction between inheritance decisions and the legal and practical matters of estate planning.
(1) Deciding how to divide your estate (equally or not, by stirpes or per capita), who gets what asset and why – those are decisions that can destroy a family’s goodwill after the decedent is out of the picture. Luckily for us, the family is fairly small and the division equitable.
It is an interesting question to be sure, because it has made me consider my ILs’ testamentary decisions and how they played out:
– they divided everything 50-50 to each son if both survive
– if one son fails to survive, that son’s share goes to his child(ren) - i.e., per stirpes
But then for some of their accounts, one IL went with per capita for the grandchildren.
Again, because both sons don’t want or need the money, my work has involved getting the financial assets descended to the grandchildren, essentially following the per stirpes route except where it is otherwise indicated.
But their decision was to treat both sons equally (when applicable) and all grandchildren equally (when applicable). But you can see how treating one generation equally may result in treating another generally “unequally” if the language is different.
And in our case, no one was fighting over the “jewelry or china.” The house was emptied by the sons (contents taken by whoever wanted it or had room and the majority donated) and sold by the LT. The Trustee of the LT divided the proceeds according to the terms of the LT.
(2) Making sure that the legal documents reflect how you want to dispose of your property is the next step
(3) Cleaning up the accounts, dividing them and retitling them to make sure they go to where the decedent wants them to go – this work can be easy or hard depending on how well planned out things were.
I can only encourage you and your husband to see what amicable steps can be taken now while your dad is around to minimize the potential squabble and work later. Also, the process may put your H in an awkward position because he is an attorney and may be accused of having influenced your dad in some way even if that never happened. I myself was not involved in any of my ILs will drafting and estate planning – they informed only their sons (ok by me) but ironically I’m the one administering their estates. That’s really the reason why I view estate planning as a gift to the younger generations when initiated by the older generation.
As attorneyMother said, it is a complex decision regarding grandchildren. If I have one child and my sister has 5 children & my parents leave us each $100k per stirpes, my kid could end up with $100k & my sister’s kids could end up with $20k each. But if both sis and I are alive when the funds are distributed, we each have $100k, it is confusing to think through the various permutations and combinations of possibilities and to decide what is the right thing to do. My parents chose per stirpes & not all of us have the same number of kids, but my in laws would have had their heads explode had BIL & DH not both had the same number of kids! I really do not know what they would have done.
It is a great topic for conversation, for thinking through with all sorts of ‘what ifs’ at a time when things are not close to happening and when there is not a lot of emotion attached, for example, if I won the lottery and paid off your student loans should I give the same amount to your brother with no student loan?
Boy, is this important. Don’t leave your children to fight over which of them Mom wanted to have the silver service.
Generally, the suggestion is that you put together a list (or memorandum) of who you want to receive the more significant personal items (as opposed to real estate or financial assets) like jewelry, silver, furniture, china, etc. That way, you have control over this list without worrying about messing with your will.
MIL had a long list of all her things and who she wanted them to go to. Not everyone wanted the things to the same degree and some of these things were not around anymore. That’s OK and we sorted them out.
Now, if any of you has Sotheby’s-caliber possessions, this suggestion isn’t applicable! 
My mother is still living and gave her good jewelry away to my sister and I. She put it all on the table and gave us turns picking what we wanted. Older (me) got first pick. She no longer wears them and now gets the pleasure of seeing us wear them.
With sentimental items, sister and I ask each other and parents first before taking things home. Parents like it that we are (slowly) helping them downsize.
@TatinG
That is a lovely way to do things. I agree that it’s best to see your loved ones enjoying things while you are around to do so!
My mother and her siblings took turns choosing from sentimental items belonging to their father after his passing, but those items were of no great monetary value. There are many siblings and each sibling took turns making first choice (in round-robin style, I think) until all the items were gone. It worked for them. Unfortunately, there is one black-sheep brother who wanted to challenge the financial disposition because he was left out (presumably because he had already been provided for during his father’s lifetime). The reason wasn’t made clear by GF (difficult relations) and it engendered bad feelings from this son who most needed the assets.
Somemom in #90 brings up good points in the variations of possibilities. My friend’s MIL died recently… What’s left will go to the 4 siblings that survive her. But one of the siblings just died this past year, left two children, who really could use the money , and the MIL had them living with her and was supporting them to a degree. They are left nothing. My friend’s husband is the only one that is making any gesture of sharing anything from the estate, not that there is much. The house is going to one of the daughters who wants her nieces and their children out ASAP. It can turn into a contentious situation.
My ILs got antsy about giving away one category of household decor item, I chose the piece I wanted and told them to enjoy seeing the item every day and that when they were gone I would cherish it. Three months later when visiting, when I walked in, their caregiver led me to the items place and showed me it was gone :eek: I learned that a “family friend” had been offered something from the collection and she chose the showpiece item and took it, yep, the one I had picked. I could have made a big deal of it, could even have contacted her as I know her, but I could see no way to do that and not look petty or bratty so I let it be, though, yah, I am still annoyed. Mainly annoyed with her for choosing what is quite obviously the showpiece item and taking it out of the family moreso than annoyed with them for forgetting. That visit I put SILs and my name on the bottoms of several pieces to discourage this “friend” from "accidentally taking anything else that someone else may have asked for, but left there with the idea that the ILs could enjoy their item.
Unfortunately, the elderly are easily subject to influence and persuasion to part with things. That’s on top of sticky fingers of unscrupulous caregivers.
@somemom, That’s unfortunate, and tacky. You could have gone after the “family friend” and discussed the “misunderstanding,” but a gift is a gift from the giver. It’s unfortunate that your ILs left it up to the recipient to choose the gift.
My sister let my cousin pick, so she took the silverware and Kennedy rocker. I was fine with everything else, but those items I wanted. It took a few years, but my cousin and her daughter love the silverware, and I don’t think my son would appreciate it as much. Took time to let things go.
One of my sibs has no kids; another has three stepkids. Interesting issues to contemplate.
Attymom, DH is not writing the will – Dad has an attorney who did that (and Dad grumbles every time I see him about the $500 he was charged). It was a boilerplate document.
DH’s role has been to raise questions about the implications of what Dad wants in the will. DH raised concerns if Dad gives my Sister2 the house she’s in (roughly half of the estate) and then the other four kids divide what’s left. My fear is that Dad is going to divide the estate by five in the will, but expects everyone to collegially agree to give Sister2 the house. Sister2 can’t qualify for a mortgage and we can’t divide equally by five without selling the house she lives in. In the previous version of the will (before my mom passed away), Sister2 and I were co-executors. I do NOT want to be placed in the position of having to evict Sister2 in order to settle the estate.
It is not a large estate – basically a modest IRA that covers property taxes and major repair expenses, Dad’s primary residence (paid off) and the house my sister lives in (which has a mortgage). No other stocks, mutual funds or savings. Current cash flow is military pension and SS, both of which terminate upon death. The primary residence will need a LOT of work to prepare for selling, and if we are lucky, we’d clear $75k after expenses upon sale. The neighborhood is declining and houses don’t sell.
I will grant that Sister2 lives a mile away from my parents and has been there for them when we all live at a distance, so my dad is especially grateful to her. However, that’s counterweighted by the substantial financial support my parents gave Sister2 after divorce #1 and #2 (no alimony, exes erratically paid $100/mo child support), and the ongoing subsidized car repairs, utilities and rent. Yes, she works FT, as does her husband.) The rest of us did not get such financial assistance. Sister 3 and Brother 2 have also taken out considerable time and energy from their lives to travel to Dad’s and help with repairs, cleaning, etc. I understand he wants to give Sister2 a bigger piece of the pie. I don’t think Dad realizes the price that will involve.
DH are am fortunate that we have been able to establish a firm financial footing. For my other sibs, that is not the case, so even while the dollars here are not large, they mean a lot to my other sibs. Actually, I think my other sibs would be happier if DH were the executor rather than Sister2. They know he would not pull any shenanigans and that they would get a full accounting.
This sounds like such a soap opera.