Posted on 10/20/2010 8:56:38 AM PDT by LouAvul
My father in law is getting his affairs in order, even though he's strong as an ox and likely will outlive us all.
My wife is his only child, and he's dividing the estate up among three people, so far.
He doesn't want to spend the money to establish a trust and he's only got a will. But my wife has heard that a will always winds up in probate and then you've got to hire an attorney, etc.
I always thought it only requires defending if the will is contested. A will doesn't always wind up in litigation, does it?
Without a will, it goes to probate and lawyers and judges get to put chunks of it in their own pockets.
Yes, a will is an absolute invitation to probate court with instruction on how to have your estate handled by the court and executor.
The politicians have made this issue so complicated you really need to hire a lawyer to advise you. It’s a rip off but there you have it.
If you don’t have a will, the state has one written for you in its Probate Code.
Look at a trust.
Here is one suggestion. Go to Amazon and you can get it used as a paper back for about $1 or so plus $3.99 shipping. The book is 8 Ways To Avoid Probate by Mary Randolph.
He should be able to retitle most of his assets so the majority of them can pass without going through probate. I think real property like cars and homes can get trickier.
I hired a lawyer to write my Will. I have no family and all my assets will be split up among non family members so I wanted it to be done correctly so no backlash upon my death. Better to spend a small amount now and be safe.
Don’t let everyone scare you. When my mother passed away some years after my father, we had to go to probate court. It was all a formality. It took about 20 minutes in the judge’s chambers, signed a few documents to the effect that the will had been executed, and we were on our way. I think there was a $60 court cost, but c’mon, it was $60.
I think it will depend on several factors not listed such as what state is it, what is the approximate total value of property to be passed, ? other issues. I do not think you need lawyers involved in some states if the estate is modest and straightforward. Someone petitions the court to be executor and distributes the estate, reports back when it is closed.
I was executor of my Mother’s estate in Texas.
She had identified me in her will to be the independent executor of her estate. It still went to probate and I had a lawyer friend of my sister help. It was not difficult.
She put my name on her stocks, her bank accounts etc. We had already sold her home & she was living with us, so it was pretty easy.
I just went through this a couple months ago.
Probating a will is important since it protects the executor/commissioner. It is not hard or scary and like some other FReepers have mentioned you can do it yourself.
It also provides a specific window for the creditors of the deceased to make a claim against the estate.
Yes, a will goes to probate court. The court ensures that the wishes of your will are carried out. The probate usually lasts about a year. This allows all creditors to file claims against the estate. In that same time, your estate lawyer can take care of other business such as state and federal taxes.
A ‘living trust’ will does not, IIRC, as long as none of the heirs try to contest it.
Anybody can challange a will. Anybody. At. All. A trust is airtight.
If there are significant assets (6-figures) then spend a couple thousand on a SPECIALIST estate planning attorney (not some moron who has done a few wills - they invariably screw things up - and 90% of lawyers are not capable of doing this, so don’t get your family lawyer or brother in law).
You might save a bundle on probate costs, and have other options to avoid estate taxes and other benefits.
This is why the wealthy prosper - because they aren’t afraid to invest in good legal advice. Most people are afraid of writing the check to a lawyer to get good advice, adn they suffer accordingly.
http://en.wikipedia.org/wiki/Probate
If you are distributing assets via a will, you will go through probate.
The only way to avoid it is through joint ownership with right of survivorship, or designating a beneficiary. The former is for bank and investment accounts (and homes), the latter is for retirement accounts.
You can avoid a lot of this with a living trust. But, if he doesn't want to do that, probate will be necessary.
That is exactly how we handled my husband’s death and how I am handling my affairs.
I just am putting co-owners on properties, have certain beneficiaries on certain accounts.
Of course if you have a normal family it helps. I know even in normal families certain issues arise but in a dysfunctional family they almost always arise.
And of course, if there are a lot of assets and/or a lot of people, things tend to be more difficult. There is always the option of passing out certain things before you pass away, such as Grandmas’ wedding ring and Grandpa’s gun. If you aren’t actively using stuff and are older, it’s best to pass it around early.
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