Wills

How Do You Handle Probate?

While you are living, you have the right to give anyone any property of your choosing. If you give your power to gift your property to another person, typically through a Power of Attorney, then that person is your agent and may also give away your property, according to an article “Explaining the basic aspects probate” from The News-Enterprise. When you die, the Power of Attorney you gave to an agent ends, and they are no longer in control of your estate. Your “estate” is not a big fancy house, but a legal term used to define the total of everything you own.

What's involved in the probate process in Florida
The basic steps involved in the probate process are similar in most states.

Property that you owned while living, unless it was owned jointly with another person, or had a beneficiary designation giving the property to another person upon your death, is distributed through a court order during the probate process. However, the court order requires a series of steps.

First, you need to have created a will while you were living. Like most legal documents, a will is valid when it is properly signed. However, it can’t be used until a probate case is opened at the local District Court. If the Court deems the will to be valid, the probate proceeding is called “testate” and the executor named in the will may go forward with settling the estate (paying legitimate debts, taxes and expenses), before distributing assets upon court permission.

If you did not have a will, or if the will was not executed correctly and is deemed invalid by the court, the probate is called “intestate” and the court appoints an administrator to follow the state’s laws concerning how property is to be distributed. You may not agree with how the state law directs property distribution. Your spouse or your family may not like it either, but the law itself decides who gets what.

After opening a probate case, the court will appoint a fiduciary (executor or personal representative) and may have a legal notice published in the local newspaper, so any creditors can file a claim against the estate.

The executor or personal representative will create a list of all the property and the claims submitted by any creditors. It is their job to ensure that claims are valid and have been submitted within the correct timeframe. They will also be in charge of cleaning out your home, securing your home and other possessions, then selling the house and distributing your personal furnishings.

Depending on the size of the estate, the executor or personal representative’s job may be time consuming and complex. If you left good documentation and lists of assets, a clean file system or, best of all, an estate binder with all your documents and information in one place, it can alleviate a lot of stress for your executor. Estate fiduciaries who are left with little information or a disorganized mess must undertake an expensive and burdensome scavenger hunt.

The executor or personal representative is entitled to a fiduciary fee for their work, which is usually a percentage of the estate.

Probate ends when all of the property has been gathered, creditors have been paid and beneficiaries have received their distributions.

With a properly prepared estate plan, your property will be distributed according to your wishes, versus hoping the state’s laws will serve your family. You can also use the estate planning process to create the necessary documents to protect you during life, including a Power of Attorney, Advance Medical Directive and Healthcare proxy.

Reference: The News-Enterprise (Feb. 2, 2021) “Explaining the basic aspects probate”

What Is Status of Larry King’s Handwritten Will?

Larry King’s widow Shawn is set to go to court over a recently discovered hand-written will that cuts her out of a share of his fortune.

Fox News reports in the article entitled “Larry King’s widow Shawn King plans to contest star’s will in court” after King’s handwritten will was discovered. The will allegedly says that his $2 million estate would be divided among his five children.

The document is said to have been drafted on October 17, 2019—just two months after Larry filed for divorce from Shawn. The new will doesn’t mention her at all and also lists his now-deceased children Chaia and Andy as beneficiaries. This will was written a few months before the loss of 65-year-old Andy and 51-year-old Chaia, who died within weeks of each other.

Larry’s three remaining children — Larry King, Jr., 59, Cannon, 20, and Chance, 21 — were also named. Cannon and Chance are King’s children with Shawn. However, Shawn contends that there was already a plan in place between she and King that wasn’t reflected in the document.

“We had a very watertight family estate plan,” she told Page Six of a plan she and her husband drew up “as a couple” in 2015.

“It still exists, and it is the legitimate will. Period,” she remarked. “And I fully believe it will hold up, and my attorneys are going to be filing a response, probably by the end of the day.”

The handwritten will is complicated by the deaths of his children in 2020; in addition, Larry also told Page Six before his death that he and Shawn had once again become close. However, it is not known if the divorce was still moving forward.

Shawn also said that she and her husband spoke daily and claimed she was never made aware of an amendment to his will.

“It beats me!” she said when asked why she thinks Larry drafted the new document.

Their two sons were also “shocked” to hear about the change, she said, and claimed they “are not happy about this.”

Shawn also said she thinks someone exerted influence over the broadcast legend to have him write the new will, although offered no additional evidence of this contention.

“Based on the timeline, it just doesn’t make sense,” she said, noting that she doesn’t believe he would have cut her out due to the filing of divorce papers.

According to People magazine, Larry King allegedly wrote in the document, “This is my Last Will & Testament. It should replace all previous writings. In the event of my death, any day after the above date, I want 100% of my funds to be divided equally among my children Andy, Chaia, Larry Jr., Chance & Cannon.”

It looks like under the current will, Shawn would likely get around $300,000 after the $2 million estate was divided among King’s sons and presumably the survivors of his late children. However, she says it’s the principle.

Larry King’s attorney said that while the firm has no comment on Shawn’s position, they feel that “the will, which we will be asking the court to admit to probate on March 25th, reflects Larry’s intent to divide his estate equally among his children.”

Reference: Fox News (Feb. 15, 2021) “Larry King’s widow Shawn King plans to contest star’s will in court”

Does Living Trust Help with Probate and Inheritance Taxes?

A living trust is a trust that’s created during a person’s lifetime, explains nj.com’s recent article entitled “Will a living trust help with probate and inheritance taxes?”

For example, New Jersey’s Uniform Trust Code governs the creation and validity of trusts. A real benefit of a trust is that its assets aren’t subject to the probate process. However, the New Jersey probate process is simple, so most people in the Garden State don’t have a need for a living trust. Living Trust

In Kansas, a living trust can be created if the “settlor” or creator of the trust:

  • Resides in Kansas
  • The trustee lives or works in Kansas; or
  • The trust property is located in the state.

Under Florida law, a revocable living trust is governed by Florida Statute § 736.0402. To create a valid revocable trust in Florida, these elements are required:

  • The settlor must have capacity to create the trust
  • The settlor must indicate an intent to create a trust
  • The trust must have a definite beneficiary
  • The trustee must have duties to perform; and
  • The same person can’t be the sole trustee and sole beneficiary.

Experienced estate planning attorneys will tell you that no matter where you reside, the element that most estate planning attorneys concentrate on is the first—the capacity to create the trust. In most states, the capacity to create a revocable trust is the same capacity required to create a last will and testament.

Ask an experienced estate planning attorney about the mental capacity required to make a will in your state. Some state laws say that it’s a significantly lower threshold than the legal standards for other capacity requirements, like making a contract.

However, if a person lacks capacity when making a will, the validity of the will can be questioned and challenged in court. The person contesting the will has to prove that the mental capacity of the person making the will impacted the creation of the will.

Note that the assets in a trust may be subject to income tax and may be includable in the grantor’s estate for purposes of determining whether estate or inheritance taxes are owed. State laws differ on this. There are many different types of living trusts that have different tax consequences, so you should talk to an experienced estate planning attorney to see if a living trust is right for your specific situation.

Reference: nj.com (Jan. 11, 2021) “Will a living trust help with probate and inheritance taxes?”

Should Unmarried Couples have an Estate Plan?

For unmarried couples, having an estate plan might be even more important than for married couples, especially if there are children in the family. The unmarried couple does not enjoy all of the legal protection afforded by marriage, but many of these protections can be had through a well-prepared estate plan. unmarried couple estate plan

A recent article “Planning for unmarried couples” from nwi.com explains that in states that do not recognize common law marriages, like Florida, the state will not recognize the couple as being married. However, even if you learn that your state does recognize a common law marriage, you still want to have an estate plan.

A will is the starting point of an estate plan, and for an unmarried couple, having it professionally prepared by an experienced estate planning attorney is very important. An agreement between two people as to how they want their assets distributed after death sounds simple, but there are many laws. Each state has its own laws, and if the document is not prepared correctly, it could very easily be invalid. That would make the couple’s agreement useless.

There are also things that need to be prepared, so an unmarried couple can take care of each other while they are living, which they cannot legally do without being married.

A cohabitating couple has no right to direct medical care for each other, including speaking with the healthcare provider or even seeing their partner as a visitor in a healthcare facility. If a decision needs to be made by one partner because the other partner is incapacitated, their partner will not have the legal right to make any medical decisions or even speak with a healthcare provider.

If the couple owns vehicles separately, the vehicles have their own titles. If they want to add their partner’s name to the vehicle, the title needs to be reissued by the state to reflect that change.

If the couple owns a home together, they need to confirm how the home is titled. If they are joint tenants with rights of survivorship or tenants in common, that might be appropriate for their circumstances. However, if one person bought the home before they lived together or was solely responsible for paying the mortgage and for upkeep, they will need to make sure the title and their will establishes ownership and what the owner wants to happen with they die.

If the wish is for the surviving partner to remain in the home, that needs to be properly and legally documented. An estate planning attorney will help the couple create a plan that addresses this large asset and reflect the couple’s wishes for the future.

Unmarried cohabitating adults need to protect each other while they are living and after they pass. A local estate planning attorney will be able to help accomplish this.

Reference: nwi.com (Jan. 24, 2021) “Planning for unmarried couples”

Who Can Witness a Will?

For a will to be binding, there are a number of requirements that must be met, including having a qualified person witness the will. While state laws on wills vary, most require you to be of legal adult age to make a will and have testamentary capacity (i.e., that you be “of sound mind”).

Yahoo Finance’s recent article entitled “Who Can and Cannot Witness a Will?” explains that you usually must have your will witnessed.

witness a will
Knowing who can (and can’t) witness a will is critically important

Witnesses to your will are significant in the event that someone disputes its validity later or if there is a will contest. If one of your heirs challenges the terms of your will, a witness may be asked by the probate court to attest that they watched you sign the will and that you appeared to be of sound mind when you did so. Witnesses provide you with another layer of validity to a will, and it makes it more difficult for someone to dispute its legality.

When drafting a will, it’s important to understand several requirements, including who can witness a will. Generally, but depending on applicable state law, anyone can witness a will, as long as they meet two requirements: (i) they are of legal adult age; and (ii) they have the mental capacity to sign the will. Therefore, the types of people who could act on your behalf include your friends, a neighbor, co-workers and any of your relatives.  Some states also require that witnesses are not receiving anything in the will.

If you’ve hired an experienced estate planning attorney to help you draft your will, he or she can also act as a witness, provided they’re not named as a beneficiary.

Witnesses don’t need to review the entire will document in order to sign it. They only need to be able to verify that the document exists, that you have signed it in their presence and that they have signed it in front of you.

When you sign the will, get both witnesses together at the same time. You’ll need to sign, initial and date the will in ink, then have your witnesses do the same. Some states require you to attach a self-proving affidavit or have the will notarized.

Reference: Yahoo Finance (Dec. 28, 2020) “Who Can and Cannot Witness a Will?”

How do I Settle an Estate if I’m Named Executor?

If you are the named executor of an estate, you should learn some of the basics of the job before any work will need to be completed. An executor is the individual named to distribute a decedent’s property that passes under his or her will. The executor also arranges for the payment of debts and expenses.

named executor
Working with an experienced probate attorney makes the job of a named executor much easier

WMUR’s recent article entitled “Settling an estate” explains that if the named executor is not willing or able to do the job, there’s usually an alternate executor appointed in the will. If there’s no alternate, the court will designate an executor for the estate.

Depending on the estate, it can be a consuming and stressful task to address all of the issues. Sometimes, a decedent will leave a letter of instruction which can make the process easier. This letter may address things like the decedent’s important documents, contact info, a list of creditors, login information for important web sites and final burial wishes.

One of the key documents is a will. The executor must get a hold of a copy and review it. You can work with an estate planning attorney to determine the type of probate (a process that begins with getting a court to approve the validity of the will) is needed.

The named executor should conduct an inventory of the decedent’s assets, some of which may need to be appraised. If the decedent had a safe deposit box, the contents must be secured. Once the inventory of assets has been compiled, assets then may be sold or distributed according to the will.

Asset protection is critical and may mean changing the locks on property. The named executor may be required to pay mortgages, utility bills and maintenance costs on any property. Any brokerage accounts will need to be re-titled. The final expenses also need to be paid.

The funeral home or coroner will provide death certificates that will be needed in the probate process, and for filing life insurance claims.

If the decedent was collecting benefits, such as Social Security, the named executor will need to notify the agency of the decedent’s death so they can stop benefits. Any checks received after death must be returned. The executor will file a final federal and state tax return for the decedent, if necessary. There also may be an estate and gift tax return to be filed.

There’s a lot for a named executor to do. It can be made easier with the help an estate planning attorney.

Reference: WMUR (Dec. 23, 2020) “Settling an estate”

Taking a Look at the Estate of Late Soccer Star Diego Maradona

Similar to soccer star Diego Maradona’s life, the inheritance process is likely to be a mess with his big family that includes eight children from six different partners as heirs to his assets, plus his intangible heritage.

Reuters’ recent article entitled “Image rights, fast cars and a ‘tank’: Maradona’s death triggers complex inheritance” explains that Maradona, who died recently at 60 from cardiac arrest, had four children in Argentina, one in Italy, and three in Cuba, when he went there for treatment to recover from his addictions, his lawyer Matías Morla said.

02 July 1982 – FIFA World Cup – Argentina v Brazil (photo by Mark Leech/Offside/Getty Images)

“In the specific case of Maradona, he is divorced and has eight children, so the estate is divided by eight in an inheritance trial,” Buenos Aires-based soccer lawyer Martín Apolo told Reuters. “It will be a complex process.”

The probate process can last 90 days in a normal case. However, Apolo said it could be much longer with the prospect of “internal disputes” and opportunists seeking a payout from Maradona’s estate. The estate of the World Cup champion, who at the time of his death was coach of the Argentine club Gimnasia y Esgrima, includes properties, cars, investments and jewels that he was given throughout his career. He played and coached in Argentina, Spain, Italy, the United Arab Emirates, Belarus and Mexico.

There is no established value of Diego Maradona’s fortune. Celebrity Net Worth estimates his net worth at the time of his death at $500,000 but said he had earned millions during his career from contracts with the different teams and sponsorship with brands, such as Coca-Cola.

Called “Dios” for his godlike skills on the soccer pitch and “Pelusa” for his prominent mane of hair. Maradona will be valuable for his image, even after death.

“The most important patrimony here could be the image rights, and also all his shirts,” said Apolo. “How much is the one he used in the World Cup final worth? How much could you pay at auction?”

The soccer star’s family has been through several legal battles in recent years, including a trial with his ex-partner Claudia Villafañe for tax evasion, procedural fraud and misappropriation of 458 objects from his past as a soccer player. However, Maradona’s family has asked for unity in the recent weeks before his death, after he underwent brain surgery to remove a blood clot, from which he was recovering when he died.

Reference: Reuters (Nov. 27, 2020) “Image rights, fast cars and a ‘tank’: Maradona’s death triggers complex inheritance”

What Do I Need to Know about Creating a Will?

Creating a will is a simple way to lay out the way in which you want your assets to be distributed among your beneficiaries after your death. This can be a good starting point for creating a comprehensive estate plan because you may need more than just a basic will. Creating a Will

KAKE’s recent article entitled “What Is a Simple Will and How Do You Make One?” explains that a last will and testament is a legal document that states what you want to happen to your property and “worldly goods” when you die. A simple will can be used to designate an executor for the will and a legal guardian for minor children and specify who (or which organizations) should inherit your assets when you die.

A will must be approved in the probate process when you pass away. After the probate court reviews the will to make sure it’s valid, your executor will take care of the collection and distribution of assets listed in the will. Your executor would also be responsible for paying any debts owed by your estate.

Creating a will can be a good starting point for estate planning. However, deciding if it should be simple or complex can depend on a number of factors, such as:

  • The size of your estate
  • The amount of estate tax you expect to owe
  • The type of assets and property you own
  • Whether you own a business
  • The number of beneficiaries you want to name
  • Whether the beneficiaries are individuals or organizations (like charities)
  • Any significant life changes you anticipate, like marriages, divorces, or having more children; and
  • Whether any of your children or beneficiaries have special needs.

With these situations, you may need a more detailed will to plan how you want your assets to be distributed. In any event, work with an experienced estate planning attorney. With life or financial changes, you may need to create a more complex will or consider a trust. It is smart to speak with an estate planning attorney, who can help you determine which components to include in your plan and help you keep it updated.

Reference: KAKE (Nov. 23, 2020) “What Is a Simple Will and How Do You Make One?”

How to Use Joint Accounts and Beneficiary Designations

A will is a very important part of your estate plan, but it’s not the only tool in your estate planning toolbox, explains the article “Protecting Your Assets: Joint Accounts and Beneficiary Designations” from The Street. Because the will goes through probate, wills control assets that are in your name only, and if you don’t have a will, the laws of your state will determine who receives your assets. Beneficiary Designations

As an alternative to a will and probate, some people name their children as beneficiaries for assets. Sometimes this can work, but it’s not always the best solution.

Here’s an example. A family includes two spouses and three children. They own a house, a bank account, IRAs and life insurance policies. The spouses have individual wills, leaving everything to each other and equally to their children upon both of their deaths.

The wills also state that, if a child predeceases them, that child’s share goes to the child’s children. This is known as “per stirpes,” and means that the child’s share of the parent’s estate is passed to the next generation. The spouses also list each other as joint owners and beneficiaries and then their children as contingent beneficiaries on all of their financial accounts. Then the husband dies.

His will does not come into play, because his wife was listed on everything as a joint owner, so all of the assets pass to her. Then the wife dies. The will won’t come into play here either, since all of her living children were named as beneficiaries. If the wife had signed a quit claim deed, giving the children ownership of the family home, before she died, the will and probate are bypassed altogether.

However, it’s never so simple. What if the adult daughter was on the bank account and she is sued? The assets are now vulnerable to the party suing her. If she files for bankruptcy, the assets could be attached by the bankruptcy court. If she gets divorced, they are marital assets and could be taken by her spouse.

This arrangement becomes more complicated when people attempt workarounds, like putting the good son who isn’t yet married and takes excellent care of his finances as the sole beneficiary. If the parents die and the son is the only beneficiary, there’s no law that says he has to share his inheritance with his siblings. This scenario is likely to lead to litigation and lasting family discord.

If you need another situation to convince you of the perils of alternatives to using a will, try remarriage.

If the wife dies and the husband remarries, he may want to leave his assets to his new wife. However, then when she dies, he wants his estate to go to his children. What if he dies and she decides she doesn’t want to name his children as beneficiaries on the accounts that she now owns? She is well within her legal rights to put her own children on the accounts, and when she dies, the husband’s children will get nothing.

People with the best intentions often create terrible financial and legal situations for loved ones that could easily be avoided, by simply working with an estate planning attorney to create an estate plan and making sure beneficiary designations have not been overlooked.

Reference: The Street (Oct. 30, 2020) “Protecting Your Assets: Joint Accounts and Beneficiary Designations”

Zappos CEO had No Will and That Is a Mistake

Former Zappos CEO Tony Hsieh, who built the giant online retailer Zappos based on “delivering happiness,” died at age 46 from complications of smoke inhalation from a house fire. He left an estate worth an estimated $840 million and no will, according to the article “Former Zappos CEO Tony Hsieh died without a will, reports say. Here’s why you should plan for your own death” from CNBC. Zappos CEO

Without a will or an estate plan, his family will never know exactly how he wanted his estate to be distributed. The family has asked a judge to name Hsieh’s father and brother as special administrators of his estate.

How can someone with so much wealth not have an estate plan? Hsieh probably thought he had plenty of time to “get around to it.” However, we never know when we are going to pass away, and unexpected accidents and illnesses happen all the time.

Why would someone who is not wealthy need to have an estate plan? It is even more important when there are fewer assets to be distributed. When a person dies with no will, the family may be faced with unexpected and overwhelming expenses.

Putting an estate plan in place, including a will, power of attorney and health care proxy, makes it far easier for a family that might otherwise become ensnared in fights about what their loved one might have wanted.

An estate plan is about making things easier for your loved ones, as much as it is about distributing your assets.

What Does a Will Do? A will is the document that explains who you want to receive your assets when you die. It can be extremely specific, detailing what items you wish to leave to an individual, or more general, saying that your surviving spouse should get everything.

If you have no will, state statutes determine who receives your assets, and if you have minor children, the court will decide who will be appointed as the guardian to raise your children.

Some assets pass outside the will, including accounts with beneficiary designations. That can include tax deferred retirement accounts, life insurance policies and property owned jointly. The person named as the beneficiary will receive the assets in the accounts, regardless of what your will says. The law requires your current spouse to receive the assets in your 401(k) account, unless your spouse has signed a document that agrees otherwise.

If there are no beneficiaries listed on these non-will items, or if the beneficiary is deceased and there is no contingent beneficiary, then those assets automatically go into probate. The process can take months or a year or more under state law, depending on how complicated your estate is.

Naming an Executor. Part of making a will includes selecting a person who will carry out your instructions—the executor. This can be a big responsibility, depending upon the size and complexity of the estate. They are in charge of making sure assets go to beneficiaries, paying outstanding debts, paying taxes for you and your estate and even selling your home if necessary. Select someone who is trustworthy, reliable and good with finances.

Your estate plan should also include a power of attorney for someone to handle financial and legal affairs, if you become incapacitated. An advance health-care directive, or living will, is used to explain your wishes, if you are being kept alive by life support. Otherwise, your loved ones will not know if you want to be kept alive or if you would prefer to be allowed to pass away.

Having an estate plan is a kindness to your family. Don’t wait until it’s too late to take care of it.

Reference: CNBC (Dec. 3, 2020) “Former Zappos CEO Tony Hsieh died without a will, reports say. Here’s why you should plan for your own death”

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