Many people think that owning property in joint tenancy means they don’t have to create a will or estate plan. Why bother with a will when all the property is going to your joint tenancy partner anyway? In fact (some people may ask) why not do away with the need for a will altogether and hold property in joint tenancy with my children? The answer to that question is that although joint tenancy may allow your heirs to avoid probate, it carries with it a number of problems and is NOT a replacement for a well-executed will or estate plan.

One of the primary problems with owning property in joint tenancy with your children is that, in the words of Phil Craig in his article Joint Tenancy: How Not to Avoid Probate, “Joint tenancy sure is easy to create, but sure is hard to end.” As Craig illustrates in his article, owning property jointly with your children may seem harmless at first, but what happens if your child gets married or divorced, gets sued, or even joins a cult?

Beyond the essential question of ownership, joint tenancy as an estate planning method falls short in numerous other ways as well; owning property in joint tenancy with your children does not do anything to minimize your estate taxes—In some ways it may actually increase your taxes. Additionally, owning property in joint tenancy with more than one of your children prohibits the other owners from leaving their share of the property to their own heirs.

Finally, even as husband and wife, holding property in joint tenancy has its dangers. If one of you were to become incapacitated or mentally incompetent, the other would have to obtain a conservatorship from the court before being able to sell or take any other legal action with the property. Having the ability to sell or refinance quickly could become a necessity when medical bills are piling up. Look into owning your home as community property instead.

There are ways to avoid making probate a necessity after your death, but joint tenancy—while it may be quick and somewhat easy to achieve—is neither a quick nor easy solution to probate. Take the time to create a quality will or estate plan. Your assets will be protected in the long run, and your heirs will thank you in the end.

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Have you ever wondered just how little you could get away with in your last will and testament? Aletta Stager of Brooklyn, NY holds the distinction of having executed one of the shortest wills on record—a mere 2 lines long!

“Nov. 29, 1895. I give to my cousin, Nettie M. Cowan, all money that I have in the Bowery Savings Bank.
Aletta Stager, 131 Berkeley Place, Brooklyn, N.Y.”

Of course, things have changed in the probate and estate planning world in the one hundred plus years since Ms. Stager executed her will. A glaring omission from the two lines above is the nomination of an executor. If you don’t nominate an executor in your will the state will choose one for you. Also, even if you have only one person in mind as your beneficiary, you’ll want to talk to an attorney about secondary beneficiaries, who can include charities and non-profits if you don’t have any family or friends to whom you’d like to leave your estate.

Even back in 1895 Aletta Stager’s property ended up going to the state of New York when no heirs—including the named beneficiary—could be found. Perhaps if Ms. Stager had included a couple more lines in her will her estate could have gone to benefit her favorite charity instead of being swallowed up by the state.

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“The death of a loved one imposes cruel demands on the closest survivors.” The truth of that statement from this article in moneywatch.com is known to anybody who has lost a close friend or family member. We’ve written a lot on our blog about going through the probate process when a loved one dies, but probate isn’t the only thing you have to think about; in fact, it may not even be the first thing you should think about. At a time when you are bombarded by as many emotional demands as you are mundane demands, how can you know what to do first?

The article mentioned above contains a helpful guide for those who are dealing with loss. It includes well-known items such as “contact close friends and family” and “make funeral arrangements” as well as items that may not come to mind as naturally, such as “write an obituary” and “contact the deceased’s employer.” Few people think about these things when under emotional strain, which is why this list is an excellent resource to file away for a time when it may be needed.

If you are having a particularly hard time with the grieving process don’t be afraid to ask others to help with the more difficult items, or to hand the list over entirely to someone else. This is when your own probate or estate planning attorney (or the deceased’s attorney, if they had one) can be especially helpful.

Although it sometimes feels as if time should stand still when someone we love passes away, life does go on, for better or worse. But the world is full of caring and knowledgeable people to help you through the process… if you only know where to look.

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We acquire so many assets over the course of our lives now—bank accounts, stocks, real property, life insurance, retirement, and more—it’s almost impossible to know what has to go through probate and what doesn’t.

The answer to the question above is no; life insurance and retirement benefits do not have to go through probate if the account has a named beneficiary. Benefits from life insurance accounts can be paid directly to the named beneficiary, and money from IRAs, Keoghs, and 401(k) accounts transfer automatically to the named beneficiaries of those accounts as well. The persons named as beneficiary, however, will most likely want to consult with a financial advisor to determine what needs to be done with the proceeds from these accounts.

Yet another type of account that is not subject to probate is a pay on death (or POD) account, the money from which can pass directly to the named beneficiary upon the death of the owner.

Probate laws vary from state to state, so contact our office—or your own local attorney who specializes in probate—for more information.

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For a subject with which everybody is at least peripherally familiar, probate can turn confusing and frightening when you are forced to become intimately acquainted with it. As a beneficiary, probate can be lengthy, expensive and frustrating; but if you have been named as executor, probate can suddenly become an overwhelming maze of deadlines, notifications and potential liabilities. This is why many executors choose to hire a probate lawyer to help them through the process.

If you are the executor of a small estate with a straightforward will and one or two beneficiaries who are not contentious then you can probably do without an attorney. But you will want to think about hiring an attorney if you are serving as an executor under any of the following circumstances:

• There are a number of beneficiaries who are not on friendly terms, or a number of beneficiaries receiving varying sizes of inheritance.

• The decedent had large estate with many different assets, especially if the assets are not commonly held.

• The decedent was a resident in a different state than your own home state.

• A large number of creditors are making claims on the estate.

• There is a disagreement about the will, or if more than one will was found.

• The will is challenged or contested.

These are only a few of the reasons why you might want to consider hiring an attorney to help you through the probate process. If you aren’t sure whether you’ll need an attorney, don’t hesitate to call our office for a consultation. We can help walk you through the process and consider any obstacles that might arise. A little bit of foresight, and knowing you have an experienced professional on your side, can make all the difference in the probate process.

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Tolstoy said that “happy families are all alike; every unhappy family is unhappy in its own way,” but sometimes even the most stable and happy of families can turn angry and litigious when death and property is involved. It never ceases to be surprising how many seemingly strong family relationships devolve into backbiting and grudge-holding when a loved one dies and the last will and testament does not live up to expectations.

When a will is contested by an angry beneficiary (or someone who thought they should have been a beneficiary), the core motivation is often more about emotion than finances. Unfortunately, however, a will contest (if the contest is deemed valid)—and the ensuing litigation process—will delay probate considerably and make it significantly more expensive.

For this reason, if you are named as the executor of a will, it is important to know what legitimate grounds for will contests are, and to have a trusted attorney to whom you can turn if and when surprises occur. Serving as executor of a will can be stressful enough when everything goes as planned; dealing with the unexpected—especially when those surprises come from hurt or angry relatives—can take over every part of your life and have a lasting effect on family dynamics.

We hope you will never have to deal with a will contest in your family; but if you do, we hope you will let our firm help you make the process as fair and as painless as possible.

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Dealing with the death of a family member—especially when that family member is a parent—can be fraught with confusion and emotion even under the best of circumstances. Being named as the executor of the deceased’s estate (although often considered an honor) means that you have to have a clearer head and more patience than everyone else during an already difficult time.

If you have been named as the executor of the estate it means that most likely a will has been found. (If the deceased did not have a will then an executor will have to be appointed by the court, but it does not mean that probate can be avoided.) Once you have been appointed the executor you are considered the responsible party during the probate process and can be held accountable by the beneficiaries. As the executor, the following is a partial list of your responsibilities:

• Reviewing the estate assets.
• Creating an accounting of the deceased’s assets and liabilities.
• Giving notice to potential creditors.
• Settling outstanding debts.
• Making distributions for estate taxes.
• Making distributions to heirs.
• Filing a final accounting with the court to close the probate process.

In addition to the above responsibilities, it will be your responsibility to keep the estate viable (making sure the mortgage and fees continue to be paid) during the probate process. Probate can often be a lengthy process, so you may petition the court to release short-term supply funds for this purpose while proceedings continue.

If you are thinking that this sounds like no easy job you’re absolutely right! Executors are entitled to compensation from the deceased’s estate, although some executors from the immediate family choose not to accept compensation. You should also remember that being executor does not mean you are personally responsible for the debts of the deceased. All debts, taxes, legal fees, etc. should be paid from the estate of the deceased, not your own pocket.

If this all seems overwhelming, there is good news: You don’t have to go through all of this by yourself. The court can appoint someone to oversee the process (although these appointees often oversee a number of probate cases at a time and may be very busy) or you can find an attorney experienced in the probate process. If you find yourself in this situation, feeling confused and overwhelmed, please call our office. We understand, and we can help.

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