Please register to participate in our discussions with 2 million other members - it's free and quick! Some forums can only be seen by registered members. After you create your account, you'll be able to customize options and access all our 15,000 new posts/day with fewer ads.
I'd be favoring the suggestions of a lawyer you already know (and who knows your specifics) over something I read online. Look, probate is a prescribed process. You follow the process. The unexpected can always step in and mess with a process regardless how carefully someone sets their plans. Doesn't mean the process itself is the problem.
Honestly, You're overthinking all this. I'm sure partly because your mother passed recently and you just settled her estate. Its front and center in your mind. What you went through was quite ordinary and really not difficult. It was just new ground for you mentally and emotionally. Now you're a bit spooked. Don't be. Educating yourself will help dispel that fear. Whether you have a will or a trust, some of the steps will be necessary no matter what. Really, you can learn a LOT just from reading the inheritance/probate laws in your state for yourself. There should be citizen-oriented information readily available. Until you move...you'd need to do the same for any other state.
OK, here's my anecdote. You know what they say about anecdotes...no two are alike so their usefulness is limited. I served as my father's executrix. I could have refused to serve but didn't. The only thing I knew about the legal side of inheritance was what my dad's will actually stated. He'd given me a copy years before he died and he had made sure it would meet state requirements. Not all wills scribbled on some notepad and stuck under a desk blotter, your underwear drawer, on a computer, or in a safe deposit box will (don't put it in a safe deposit box...a bank will freeze the decedent's accounts/access as of the date of death. You won't be able to access the box unless you are already a signatory or until you've been officially designated the executor by a court. You can't be designated until you present the will!).
The first thing I did was go online and read his state's probate court website about what the process actually was. Next, advised by the probate info I'd just read, I arranged for copies of his official death certificate and contracted with a local family law/estate attorney a relative suggested. He did exactly what I needed him to do: prepare local notices and legal statements, made any required court appearances on my behalf (I lived over 2000 miles away), and kept me on track for each step. No problems with that at all. IMHO, he earned his fee by keeping me out of avoidable trouble and saving me thousands in travel costs.
My dad thought about setting up a trust to avoid probate but he never followed through...setting up a trust takes time, money (attorney fees), and thought too and it wouldn't necessarily make anything that much easier for anyone.
Why did the estate take over a year to settle? Because my dad was a very meticulous, paranoid investor and had little mutual funds, insurance policies, bank accounts, stocks and bonds and cash ferreted away everywhere. He also had a house and a rental property to clear out and prep for sale, and 2 cars to get rid of. He never set up any POAs and had no beneficiaries on anything other than 3 IRAs. Mere weeks before he died I did talk him into designating me as direct beneficiary on one bank account so I had funds for his final expenses: initial travel to arrange cremation, etc. His will was carefully written, quite specific describing his assets, and the court readily accepted it. There were no actual discrepancies or legal hiccups. The probate process took as long as it did not because the process itself was difficult, but simply because there were lots of assets to corral, either liquidate or get ready to split amongst the heirs and because of dictated public notices and mandatory legal timeframes that must be observed. Its a legal process so its detailed; little Ts to cross, Is to dot to help prevent some malignant party from throwing a wrench into it.
The only real hassles were dealing with various banks, investment houses and insurance companies. They don't feel any urgency to give up the money they've been holding. There were no real problems with the heirs or court process. The real estate took time to prep, market, and sell but that wasn't because of probate. No one contested anything. It wasn't the tangled nightmare people often associate with probate, it simply was what it was. If my dad hadn't had such a complex financial life it would have taken less time.
As for being paid to serve, I chose not to be. My expenses were reimbursed by the estate and I was also an heir due an inheritance. It was enough for me to know I'd carried out my dad's wishes in good faith.
Once you get more familiar with your state's general process, talk with your lawyer again. You can always modify or reverse any plans you make...unless you're planning to die in the near future you probably will. Just remember, the more complex your plans, the more effort it takes to change them.
I actually don't know this lawyer yet, I chose her from reviews and we exchanged a couple of e-mails.
The problem is the steps you took with your dad, "Step 1, read about probate, Step 2, get death certificates" etc etc, I fear he won't be able to do that. He doesn't think in "step one, step 2". I can't really explain it but I feel he'll be so overwhelmed especially when grieiving too, that he won't be able to figure out those steps and will miss timelines, etc. Any roadblock that came up would be hard for him to figure out how to get past. Maybe one of my niece's will agree to be a co-executor and help him.
I am curious as to why everyone is ignoring my very real experience posted here that we submitted my mother's will for probate and got our Letters Testamentary and the Notice of Probate within two weeks. IN NEW JERSEY.
So I'm thinking that maybe people are referring to probate to also mean the settling and distribution of the estate?
So, while Probate itself actually took less than two weeks and enabled my sister and I to be named executors, the actual distribution and settlement of the estate took another ten months because we had a house to sell. I'm wondering now if THAT is what the OP is referring to when she speaks about it taking so long, not the actual probate (filing of the will) itself.
It seems that what she is really worried about is not the probate (filing of the will and naming of the executor) itself, but the ability of the partner to settle the estate/transfer assets/pay off debt, etc. In that case, why not name someone else executor to take on that task? Of course, that person will get a fee from the estate for that, but it sounds as if it would be worth it.
The lawyer is likely referring to the court process, as I was, not the administration of the estate after the will is probated.
Yes, he won't be able to wait a year to get money. But can the bank accounts go to him right away and be kept out of probate if he is designated as beneficiary?
You need a will even if you have a trust. The will can say everything goes to the trust. Without a will the state will provide you with a will. Did your attorney explain this? Your BF would not be included in the state will since you are not married.
Sounds like your BF should not be involved in the settlement of your estate. Thus you should find an executor. Could be a law firm or maybe a bank. Your attorney should be able to help in this area.
Consider increasing your insurance to cover the mortgage. The beneficiary of the insurance is your estate (will) or trust with instructions to pay of the mortgage.
If the BF can not, especially as he ages, manage his financial affairs then you would lean toward a trust and a professional trustee.
If a trust seems to expensive you might have all your liquid assets used to purchase and annuity for your BF.
Be sure your attorney is experience in this area. From what little info you provided I do not get a positive feeling toward the attorney.
IRA's are a problem but you can put it in a trust and the trust must say it is for your BF. The funds have to be taken out over a 10 year period. They are taxed as income to the BF when taken out. Might convert these to an annuity.
Good luck
How would that work? I do worry he won't be able to manage them even now, lol. I am just in the process of getting the life policy. I can't really afford to increase it more than it is. I never thought about having another executor instead of him. It sounds like there would be a lot of expense and fees if a law firm was executor though, and it won't be that big of an estate. Same thing with a professional trustee.
I don't really know the attorney, maybe I should look around more first.
The problem is the steps you took with your dad, "Step 1, read about probate, Step 2, get death certificates" etc etc, I fear he won't be able to do that. He doesn't think in "step one, step 2". I can't really explain it but I feel he'll be so overwhelmed especially when grieiving too, that he won't be able to figure out those steps and will miss timelines, etc. Any roadblock that came up would be hard for him to figure out how to get past. Maybe one of my niece's will agree to be a co-executor and help him.
Then I think your decision is clear. DON'T choose him as executor, not even a co-executor! Co-executorships can be awkward and complicated. Dealing with your emotionally unstable, disorganized bf probably wouldn't be a very kind thing to saddle your niece with. Now if she agrees, she could serve as the sole executor. She can always hire competent help for herself instead of relying on your bf. Your will could stipulate that estate asset funds can be used to hire the appropriate assistance (attorney, accountant, tax preparer, etc.), but it probably isn't necessary to state it specifically. Leave the bf out of it. If you want him to benefit from an inheritance, nothing's stopping you from listing him as an heir.
Last edited by Parnassia; 04-22-2022 at 11:29 AM..
Yes, he won't be able to wait a year to get money. But can the bank accounts go to him right away and be kept out of probate if he is designated as beneficiary?
Yes. This has been stated several times. You need to discuss beneficiary designations with your bank. Their processes differ.
Then I think your decision is clear. DON'T choose him as executor! No, not even a co-executor! Co-executorships can be awkward and complicated. Dealing with your emotionally unstable, disorganized bf probably wouldn't be a very kind thing to saddle your niece with. Now if she would agree to be the sole executor she can always hire help for herself. Your will could stipulate that funds sourced from the estate can be used to hire the appropriate legal assistance. Leave the bf out of it. If you want to designate him as an heir you can.
He's not emotionally unstable. He's ADD, unorganized, and doesn't have the kind of mind to break tasks down into small steps. And it is HIS money too, as he just gives me money when he gets paid and I put it in my bank account to pay our bills with/save. I do think maybe you're right though that he won't be able to handle it. But I need a solution that doesn't end in tens of thousands in legal fees. It's not going to be that much money that those fees won't matter. So now confused again.
How would that work? I do worry he won't be able to manage them even now, lol. I am just in the process of getting the life policy. I can't really afford to increase it more than it is. I never thought about having another executor instead of him. It sounds like there would be a lot of expense and fees if a law firm was executor though, and it won't be that big of an estate. Same thing with a professional trustee.
I don't really know the attorney, maybe I should look around more first.
Some attorneys will charge a percentage of the estate as their fee. So, if the estate is small, so is the fee. Others would charge an hourly rate, or some combination of hours/expenses. If good preparations are made in advance, the total billable hours may be small. Some firms offer you a choice. You'd need to discuss this with individual firms to get some idea what these fees and expenses might be. Don't forget, if your chosen executor creates a legal mess, it will cost the estate (and by extension, the heirs) even more to clean it up!
He's not emotionally unstable. He's ADD, unorganized, and doesn't have the kind of mind to break tasks down into small steps. And it is HIS money too, as he just gives me money when he gets paid and I put it in my bank account to pay our bills with/save. I do think maybe you're right though that he won't be able to handle it. But I need a solution that doesn't end in tens of thousands in legal fees. It's not going to be that much money that those fees won't matter. So now confused again.
I meant, unstable while grieving!
If you two co-mingle funds, that's going to make settling your estate or setting up a trust complicated unless a very careful accounting is being kept. Somehow, your money needs to be separated from his. Unless he considers all this money a gift, it isn't part of your estate. You two are not married. You need to research how your state deals with finances/community property between unmarried partners. An estate attorney should be able to help you with this.
Last edited by Parnassia; 04-22-2022 at 11:31 AM..
Oh, he will definitely be unstable then! Ugh, I'm more confused than ever.
Forum members can only help you so much. Nickel and diming these sorts of questions isn't very efficient and can miss important aspects if you don't know enough to ask about them. Talk to a family law/estate attorney about how to create a plan! They know what sorts of things to ask about what you want.
IMHO, I'd suggest letting all this settle out in your mind for a while. Educate yourself. Go to your state's probate court website and read about inheritances and probate. Read about estate planning and the types of things you should consider. Read some examples of wills your state accepts to get an idea what sort of information they include. Then start drafting what you want to happen overall. Once you have an idea what you WANT, get some legal advice in terms of making that happen.
Please register to post and access all features of our very popular forum. It is free and quick. Over $68,000 in prizes has already been given out to active posters on our forum. Additional giveaways are planned.
Detailed information about all U.S. cities, counties, and zip codes on our site: City-data.com.
Please register to participate in our discussions with 2 million other members - it's free and quick! Some forums can only be seen by registered members. After you create your account, you'll be able to customize options and access all our 15,000 new posts/day with fewer ads.
