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When my DH passed I did not open probate. All assets had named beneficiaries (me). If we had still had real estate at the time, it would have been Joint Tenants with Rights of Survivorship.
When I go, same thing. Except the beneficiaries will be charities. Nothing for the stepkids to fight over.
The documents you will need are a will, power of attorney and living will (health care directive)
If your son can handle the tasks then he could be named on all three. The power of attorney will probably let him do what ever you can do with your assets. You would want this incase you were not able to make your own decisions. Make sure your attorney explains this document in detail. You might want to place some limits on the power related to real estate, borrowing money etc.
A trust will avoid probate for the assets YOU put into the trust. Sometimes trusts have to be drafted to protect certain homestead benefits you may have (do not know SC laws). In general my assumption is that a trust is not needed.
Assets that have a beneficiary (bank accounts, brokerage accounts, probably any financial asset) should be able to avoid probate. These assets do NOT pass under your will but go directly to the beneficiary. This is probably how you will distribute most of your property.
The car might be simple. If the will leaves the car to your son a copy of the will and a visit to the motor vehicle department might be all you have to do. Ask your attorney.
Your home might be the big problem as far as probate. Do not put your son on the deed as an owner.
A life estate for you for the home might work but this can still have problems if you change your mind.
Ask if their is a summary probate - a do it yourself option for small estates.
Google the terms mentioned for SC and you should get a lot of good info. Start with the word probate.
I agree with you. Try and get the answer before you meet with the attorney as you will be better able to ask good questions and understand the answers.
Discuss where you are going to file the papers in your home. The will should not be in a safety deposit box if you are the only one that can open it. The power of attorney should probably be keep by you until needed.
Ask about a separate writing. It will be referenced in the will. You can use it to give a picture to a friend etc.
When you are done with the attorney you probably want to write down a letter of instructions to your son. List all your assets, debts, where the keys are etc. You are trying to tell him everything he needs to know.
If you have digital assets such as financial web sites, email etc be sure to discuss with attorney and to have passwords and log in name for your son. Your vendors may allow access to a trusted individual. Search each web site for the term.
If you have stopped getting bills and financial statements in the mail make sure you identify all the sites and your son can get legal access to the sites. Might want to go back to the mail.
Remember old tax returns maybe helpful to your son.
I could go on and on. Good luck
Do your funeral arrangements now if you can. Will be a big help when the time comes.
In SC, probate takes over a year and generally you need a lawyer to handle it. My estate is not complex. I wish the lions share (including any property I own such as my house, car, etc.) to go to my son. He will also get the lion's share of the rest (investments, cash, etc.) with a small piece of this going to a niece.
I believe there are ways to avoid probate. I will soon be visiting my lawyer to discuss this but I wanted a head start so I can be familiar with the procedure. I presently have a will but I will be eliminating one person.
Please explain, in layman's terms, how to go about this.
Thanks
Simple. To avoid probate set up a trust. Mrs 5150 is an estate planning attorney.
Simple. To avoid probate set up a trust. Mrs 5150 is an estate planning attorney.
if i remember correctly you posted a lot of mis-information she supposedly said too about holographic wills . not a comfortable feeling from what you posted if it came from someone who does this stuff for a living ...just sayin . .
Be sure all of your bank accounts and investment accounts have either a POD (payable on death) or TOD (transfer on death) beneficiary named. You can split it between multiple people (state what percentage to each) and you can specify contingent beneficiaries. For example, mine have 100% to my son, but if he is no longer living, the contingent beneficiaries are my 2 grandchildren at 50% each. These do NOT go through probate or your will.
If you have US savings bonds, you can also specify who gets the bonds after your death.
401k/403b or IRA - be sure you have beneficiaries named. Again, you can specify multiple people and you can name contingent beneficiaries.
Here in Vermont, I was able to name my son as a TOD for my car. Don't know what other states may have that.
For me, only my house will have to go through probate. But some states allow you set up a special kind of deed or trust (goes under various names) for your house. You need a lawyer to set that up.
I am not certain it is possible to avoid Probate, but it certainly is possible to have all documents and plans in place in advance so that Probate becomes a 'rubber stamp' rather than a protracted experience.
The Estate will often need to remain open for 18 months after death to encompass two tax years for the inevitable late arriving documents.
And then there are the "One in a Million" special situations:
A former Brother-In-Law died in 2010 after a two month battle with skin cancer. He was in his late 50's, still working, had two adult daughters, and did not have a Will.
Because of Michigan's laws for distribution of assets in the case of no Will, our Nieces each received 50% of his estate as would have been their father's wishes.
If there had been a Will, his dead-beat brother and greedy sister 'may' have filed dispute actions against the Will.
No Will, No dispute actions, Distribution by State Law which happened to match the deceased's intentions.
I am not certain it is possible to avoid Probate, but...
It IS possible and for nearly everyone.
Doing so however will require OTHER responsible choices being made.
You can't just go on auto-pilot.
otoh... if you're lucky enough to be one of the 1-5% with truly sophisticated holdings
what are you doing looking on a general interest forum for financial advice?
The documents you will need are a will, power of attorney and living will (health care directive)
The question is avoiding probate. You don't need any of ^^^^ to avoid probate in most states. In fact a will can lead to probate.
There have been very good answers here. We avoided probate with my mother by making me and my sister beneficiaries to some assets, adding us to her bank accounts, and setting us to be Joint tenants with rights of survivorship on our mother's condo. None of that required a lawyer.
It IS possible and for nearly everyone.
Doing so however will require OTHER responsible choices being made.
You can't just go on auto-pilot.
otoh... if you're lucky enough to be one of the 1-5% with truly sophisticated holdings
what are you doing looking on a general interest forum for financial advice?
I have heard, and rumors/stories can be false and every State has different laws, that every estate passes through Probate. The difference is whether the Probate Action is a cursory examination to verify everything was done in accordance with State Law and the Will, or if the Court needs to hold extended hearings to determine the correct/intended asset distributions with no documented input from the deceased.
As for your second question:
No, we are not in the top 10% where we can hire an army of attorneys and accountants to do this work for us at no concern for the cost. Neither are we in the bottom 60% where we have no assets or nearly no assets to be concerned with. We are in between those two groups with enough wealth for its distribution to be a concern, but not enough wealth whereby we do not have to become directly involved in the research and actions.
I assumed most of us on the Forum were also in or approaching that 30% band of forced D-I-Y'ers.
Do you have to in SC - Nope. Should you - Yes. Your son will thank you later!!
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