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Well, Louisiana is a strange place as far as its legal system goes. I'd be a fool to venture there. But, for posters outside the state there are many solutions for the additional miseries the OP experienced realted to the assets. Most people use POD accounts which do not require probate to transfer. A copy of the death certificate presented to the bank and the money is available.
One would not usually counsel persons in their forties to fund intervivos trusts due to the inconvenience of signing things in a trustee name, but there is no reason it could not be done, avoiding probate entirely.
It is a pretty unusual estate plan that can't be solved with survivorship deeds and POD accounts that does not need an intervivos trust. I have been doing this for a long time and I would say that if you have a will and think that there may be assets to probate you probably should have a trust or know why you don't need one. Of course, every fact pattern is different but it is pretty unique for a will to work where POD accounts and survivorship held property is not enough.
This sort of jolted me into finally reading up on this stuff and getting our affairs in order. It's pretty complicated, from what I've read so far.
How do you know if you have survivorship rights or not? For instance, does both names being on the deed guarantee that the surviving spouse gets the house?
ETA: I just read up on POD accounts... I thought a joint checking account was enough, but it sounds like we can only both access the funds so long as we're both alive.
How do you know if you have survivorship rights or not? For instance, does both names being on the deed guarantee that the surviving spouse gets the house?
A survivorship deed is not created by joint names on the deed. They are deemed to be tenants in common essentially each owning an undivided one half interest. In states that permit a survivorship deed, the deed will read:
John Doe and Mary Doe or the survivor of them.
or
John Doe and Mary Doe, each with the right of survivorship.
Thanks so much, Wilson. I have to go get our deed out of storage so I can see if it says that.
From what I've read so far, I think we'll be wanting Revocable Trusts, because we own property out of state, amongst other reasons.
Where did my post go? I wrote a follow up and now it has disappeared. If I was not in such a good mood, I'd bag it, but I will rewrite it here:
Let me be of some more help.
Most places, the auditor's office has a web site and the deed information is on the web site. At least the name on the deed, which if it includes word of survivorship you're good to go.
If no auditor's site, your tax bill will usually have the exact name of the title holders on it. Again, check that.
On the subject of "revocable" or "irrevocable" trusts, all of my trust instruments say "irrevocable" but provide that the grantor (you) can make unlimited withdrawals until death. While the instrument cannot be revoked, you can get all the assets out. So when you go looking for a trust, don't be put off by the word irrevocable.
As for the out of state real property, you want to deal with that right away since it would require ancillary administration in that state if you or the spouse would die.
While some lawyers might put the assets in a trust, as you indicated, the preferred method today is to put the foreign real estate in a sole member LLC created solely for the purpose. This has numerous benefits. First, the LLC does not have to be administrated in a probate court. You will be the trustee of your "irrevocable/revocable" trust so if you die, the successor trustee (usually your wife) will have to transfer the property in the foreign jurisdiction into her name as successor trustee and that may require as much attention as an ancillary administration. The LLC does none of that.
Second, the LLC interest is transferred without any public record of the transfer. there is just an assignment of LLC interest which is a piece of paper not filed with anyone in most jurisdictions. So, the dating of the transfer is not subject to confirmation. While I would not mis-date a conveyance of the LLC interest, I am sure that you can see that many a person who has died has had the LLC interests transferred the day before under the durable power of attorney you also have given, probably to the wife. If both husband and wife are owners of the foreign real estate, then I use two sole member LLC's as opposed to a two member LLC. They only cost $125 to form and as a disregarded entity do not require any income tax forms or interfere with interest deductions.
Thanks again for all the details! I AM the wife, BTW. Hard to tell from my handle.
I don't mean to sidetrack the thread, but, hopefully, anyone who reads it will now have some good info to help them decide how to handle their affairs.
countrySue - I hope you're doing OK and let us know if there's anything you need.
I asked the attorney how I was going to pay him if the accounts were frozen. He laughed, told me not to worry about it, and said that the law didn't necessarily make sense. He said if it did, there would be a lot of attorneys out of business.
I sure hope you got a rare find in the probate business.......an honest lawyer.
I've tried to make sure that my wife won't have much to deal with but no matter how much I try I'll never be sure.
Country Sue, I too am sorry to read of your spouse's untimely death. I think many people put off doing the paperwork they should do and getting everything in order. I have the paperwork to do a will, but have put it off for the last three years. My son-in-law will have my power of attorney and will be able to take care of financial matters after my death. I started to tell my wife one day what I wanted to do with my many firearms and she said "I'm not going to do that" so that basically ended that conversation. Later she asked why I was not going to make her my power of attorney and I told her, "because you wouldn't do what I wanted" she said what if Steve doesn't do what I want, and I said tough, you'll have to live with it. My name is the only name on my mortgage and while I want my wife to be able to live in this house, I don't want her to own it and give it to her kids. My son-in-law will do what I want him to do. My one remaining son's wife is the reason I wouldn't name him as my power of attorney, she is a witch.
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