Ask the Lawyer: Probate Q&A

[dennishoddy]

We had to put my moms property through probate.
We were told after the fact that she could have gone to the courthouse, filled out some form for $40 or so, and probate wouldn’t have been necessary.
Years before, mom put my sister and I as co-owners on all of her investments, checking, and savings account, then made us co-admin and Co- executors in the will. It all went pretty seamlessly except for having to pay for the probate expenses.
My wife is going through that process now with her mom. It sucks, but it’s better that it it could have gone had no prior preparations been done.
My best friend, his sister and brother are about to dissolve their family ties over who gets what, all over 160 acres of land with a 100 year old house on it, because no will was written.

 

[sedona]

My parents made a trust several years ago.My Dad has since past away but my Mom is still alive.I only have one brother and was told when the trust was being made that after my Mom dies that everything would be split 50/50 between my brother and i.Will I still need a lawyer when my Mom dies or just call the phone number of the people that wrote the trust and they will take care of it?

 

[Dave70968]

We had to put my moms property through probate.
We were told after the fact that she could have gone to the courthouse, filled out some form for $40 or so, and probate wouldn’t have been necessary.
Years before, mom put my sister and I as co-owners on all of her investments, checking, and savings account, then made us co-admin and Co- executors in the will. It all went pretty seamlessly except for having to pay for the probate expenses.
My wife is going through that process now with her mom. It sucks, but it’s better that it it could have gone had no prior preparations been done.
My best friend, his sister and brother are about to dissolve their family ties over who gets what, all over 160 acres of land with a 100 year old house on it, because no will was written.

Yes, making people joint owners (or, alternatively, using transfer-on-death accounts) is one way of avoiding probate. It takes a fair bit of foresight, though, and a lot of trust that the joint owner won't abuse that privilege during your lifetime. Another option can be to use a trust. All of those necessarily involve giving up, or at least sharing, some degree of control over the subject property during your lifetime.

Not together. She had one daughter and one son when we met.

I'm sorry, I didn't phrase that clearly. I meant it as "do you have any kids, regardless of who the mother is?" I ask the question to determine whether there might be somebody else who would have a viable claim to your estate. Yes, even if you do, you can leave everything to your wife, but it's best to specifically disinherit them in your will if that's your intent to avoid the "unintended omission" problem discussed above in 84 O.S. 132 (sometimes, rather than completely disinheriting, people will leave $10 or somesuch token amount to make their intent abundantly clear).

I think my next "Ask a Lawyer" thread will be about estate planning, and another about living will and end-of-life medical planning. This is kind of fun to do.

 

[MacFromOK]

I'm sorry, I didn't phrase that clearly. I meant it as "do you have any kids, regardless of who the mother is?" I ask the question to determine whether there might be somebody else who would have a viable claim to your estate.

Nope. Married sweetie when I was 18 (she was a hot 27). Not many wild oats before then, and no offspring.

 

[Dave70968]

My parents made a trust several years ago.My Dad has since past away but my Mom is still alive.I only have one brother and was told when the trust was being made that after my Mom dies that everything would be split 50/50 between my brother and i.Will I still need a lawyer when my Mom dies or just call the phone number of the people that wrote the trust and they will take care of it?

That will depend upon the terms of the trust. Trusts are divided into two general pots of money: income and corpus (body). The corpus is the principle; the income is the dividends, income, etc. that arises from investment or operation of the corpus. Based upon what you've described--and I'm really just guessing here, so don't take this as any kind of seriously credible answer--it sounds like your mom is the income beneficiary for life, and you and your brother are to split the corpus when she passes. If that is correct, you should just need to call the trustee (not the author of the trust, but the people actually managing it) and ask them to cut you a check. If there's real property, the trustee may need to sell it, prepare deeds for joint ownership, etc., but the trustee should be able to handle the division. You shouldn't need a lawyer (unless there's a debate about value, terms of the trust, etc.), and definitely shouldn't need to go to court. But again, that's an educated guess based on a reading of a one-sentence description, not an actual reading of the trust document; take it not with a grain of salt, but an entire block.

 

[Dave70968]

Nope. Married sweetie when I was 18 (she was a hot 27). Not many wild oats before then (and no offspring).

Alright, then it should be easy for her (or her representative) should you go first. She'll still need to go through probate to get the cars and bank accounts, but it should be painless with nobody to challenge the will.

I'd prefer to address it in more depth in the future end-of-life planning thread, but from your description, it sounds like she's going to need a caretaker or adult guardianship. Given your description of her daughter, it might be worth making that nomination now, while you're still around to help find somebody trustworthy, than to wait until she's at the mercy of her daughter. Again, if that's something you'd prefer to discuss privately, I understand (and if you want to get into details, I'd say it's probably a very good idea).

 

[MacFromOK]

I'd prefer to address it in more depth in the future end-of-life planning thread, but from your description, it sounds like she's going to need a caretaker or adult guardianship. Given your description of her daughter, it might be worth making that nomination now, while you're still around to help find somebody trustworthy, than to wait until she's at the mercy of her daughter.

I don't see a particular need for a privacy at this point (feel free to correct me if I'm wrong), but I am intrigued by the "caretaker or adult guardianship" aspect. Please elaborate at your convenience.

 

[dennishoddy]

Yes, making people joint owners (or, alternatively, using transfer-on-death accounts) is one way of avoiding probate. It takes a fair bit of foresight, though, and a lot of trust that the joint owner won't abuse that privilege during your lifetime. Another option can be to use a trust. All of those necessarily involve giving up, or at least sharing, some degree of control over the subject property during your lifetime.
do.

Very true. Trusts do have their drawbacks.
They are not forever, and do have a lifespan.
So, if one wants to preserve the trust say in property ie. farmlands, etc., to make sure it stays in the family, it dissolves in 21 years I think? Then the convoluted owners of two generations get in huge battles to see who gets what share of the land.
If you hate your kid and want everything in the trust to go to grandchildren, you run into a generation skip that can be costly depending on the value of the estate.

 

[Dave70968]

I don't see a particular need for a privacy at this point (feel free to correct me if I'm wrong), but I am intrigued by the "caretaker or adult guardianship" aspect. Please elaborate at your convenience.

Very true. Trusts do have their drawbacks.
They are not forever, and do have a lifespan.
So, if one wants to preserve the trust say in property ie. farmlands, etc., to make sure it stays in the family, it dissolves in 21 years I think? Then the convoluted owners of two generations get in huge battles to see who gets what share of the land.
If you hate your kid and want everything in the trust to go to grandchildren, you run into a generation skip that can be costly depending on the value of the estate.

If'n y'all don't mind, I'd like to table those discussions for a couple of days until I can get back to my personal library and address them properly, and in the appropriate threads. As I mentioned above, I think I'm going to make a series of this, and end-of-life-care planning and estate planning are the next two topics I want to address, so it should only be a few days. Do you mind?

 

[MacFromOK]

Sounds good to me. Thanks.