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I can answer some of your questions, I hope, having done all this not long ago, but in some things my experience was different by virtue of the fact that my mother died in late March of 2020.
Courts were closed, so we never even got to thinking about a lawyer at first. I am one of six living siblings, and one sister and I were co-executrices. Two brothers were living in my mothers house with her. At the time, a notice on the county court site said to call a number, where we got some poor woman taking calls at home who told us to scan and email a copy of the will. Then everything went silent, no doubt in part because of the exploding death rate in the county in those months (the usual two-page obituary section in the newspaper jumped to about seven pages for a while).
The point is that we never even thought about an attorney until July, when there began to be some noise in the paper about the back up of wills, etc., because the courts were still closed. We decided at that point to look for an estate attorney, and by chance the one we picked happened to be the one who was working with the county court to design a workaround for probate with a closed court.
The short version of how that relates to you is that we did use a different attorney from the one who prepared my mother's will. I am not sure why you would need a different one, UNLESS the one your mom used did not really have estate law as his primary specialty. My mom's lawyer was an old guy in town who did basic law, wills, real estate, whatever, for a lot of people in town but really didn't specialize in anything, just a general family lawyer. We didn't really feel confident contacting him, given the weirdness of the situation.
Re executor's fee. Yes, the executor is entitled to a fee. That is based on your state's law and is usually a percentage. In New Jersey, the percentage depends upon the value of the estate. I just did a quick search, and it says the same for SC if it is not mentioned in the will. Your fee is higher in SC than in NJ.
Yes, the attorney gets paid out of the estate. Also, call the lawyer and ask about how they get compensated. IIRC, they charged us a consultation fee but if you decided to retain them, that consultation fee was waived or deducted from the final billing. They will give you a list of their billing rates and an estimate of how much time they will spend. Most of the work will be done by a paralegal, who is much cheaper than the lawyer. They are going to ask questions about what the estate consists of; for example, in my mother's case, it was mostly her house, except for a few smallish bank accounts. They are experienced and will be able to give a good estimate of how much work it will be based on the size of the estate and any complications. Oh, and our estate attorney was also the attorney for selling her house. They just did it all. They will do things like search to see if there are any debts or liens against the estate. In our case, it turned out my mother had signed to be responsible for my late brother's hospital bill 19 years earlier. I guess he was supposed to pay the bill but never did, and there was a collection notice against my mother for it. It was $1800. We told the lawyer to pay it and silently sent up a middle finger to our dead brother for screwing us over one last time.
But just choose an estate lawyer who is established in your county, because they will not only know what to do, they will know the people in the courts. Ask them all the questions you need to, because get this--you are paying them and they work for you and that is part of their job. And they know the answers. It is the first time for most people, and in our experience, they were very happy to explain everything that we didn't know, which was pretty much everything. They are used to that. You are not expected to know these things. That's why you need a lawyer.
As far as living with your mother, that is something to work out with your siblings/other heirs. We had a similar situation. My mother lived in the house she and my father had built 63 years earlier. Due to circumstances of failed relationships and health issues, our two youngest brothers had at different times moved back in with her. One of them worked and kept his painting and landscaping equipment in her garage, but he also took care of the house and yard for our mom. The other brother has a spine issue and was not working because he has difficulty sitting or standing for long periods, but he did my mother's laundry and cooked meals for her. Their presence at the house allowed her to stay there in her home in her very last years (she was 91 when she died in her sleep in her own bed) and so we were OK with them staying there while we emptied the house and got it ready for sale. This took more than a year due in part to COVID but also due to the fact that there's a lot of stuff in a house after 63 years.
My sister and I, as executors, decided to pay the house insurance and electric/gas bill for the house while my brothers were still living there. We also decided, with the OK of the other siblings, to give my youngest brother our mother's car, since he did not have one of his own but had driven our mother to grocery shop and to medical appointments in her last years.
Now you hear a lot of stories about people, especially siblings, getting ugly and lots of dissent and problems after the death of a parent, but that simply didn't happen with the six of us. We are not the Waltons by a long shot, but everyone more or less agreed with the decisions made by my younger sister and I, the executors. We kept everyone informed along the way, and if someone wanted something from the house; e.g., I wanted my mother's desk, we asked the rest of the siblings if they minded. A lot of how smoothly this goes is going to depend upon your relationship with your family.
If you are the executor, which you don't say, then you have a lot of say in some of these things, such as if the utility bills are paid by the estate (I think that is the right thing to do) or by you personally. It is a lot of work, and as you rightly anticipate, we are grieving while all this is going on.
Eventually as we planned to sell the house, we had to tell our brothers to find other places to live, which they did. Before that, the real estate agent had told us what we needed to do to make the house marketable; e.g., some fixes to the exterior, removing old carpet, polishing some floors, and what we needn't bother to do since a new owner would likely redecorate. We paid our brother out of the estate to do the work. This came out of the money at the end when the house was sold.
My advice is just expect that things will come up that you never anticipated. My younger sister, my co-executor, ended up on a ventilator with COVID as we were nearing the end of cleaning out the house and was hospitalized for seven weeks. We were not sure she was going make it, so I had to make the decision on my own to put the house on the market and sell it. Fortunately, she survived, and she was able to attend the closing. (And has no memory of even being there--COVID brain.) I told her to keep the entire executor's fee since she almost died doing the work (she was in the house for days with one of the brothers, who insisted he just had a cold and wouldn't get tested).
It's good that you already anticipate knowing it will be stressful. It is. Emotionally leaving the home is in and of itself difficult. While I was in the final cleaning out/selling process, I kept having endless dreams that my parents, my grandmother, and my dead brother, were in the house and I kept telling them that they had to leave because we were selling the house and people were coming to look at it and my mother would just say, "Well, where do you want us to go?" I couldn't even escape in my sleep!
Good on you for asking questions and thinking about all this ahead of time.
Thanks so much for sharing this. It helps to read what others went through and you definitely went through it during Covid and with courts being closed. Kudos to you for getting it done. What a lot to have to deal with plus your sister being so bad off. I'm sure your brothers appreciated what you did for them.
You seemed to keep things going and were very fair to everyone. I hope I can be that way also. I don't want this to cause any resentment with the siblings because of the will. I've heard horror stories.
There will be many a cabinet and drawer to clean out because my mom hardly ever threw anything away. She saved everything and knew where most things were except for a bunch of e-bonds she says str around somewhere. Hopefully I run into them while cleaning up. I'm sure I'll get emotional from all the memories.
Oh for sure it'll be stressful. I preferred not to be the Executor of the Will because I knew it would be stressful but mom asked me to do it, so I said I would.
I do most for mom and always have. I'm the one kid that she calls if she ever needs anything and will be the one she can depend on in her old age.
I am thinking of taking pics of all the furniture and asking my brother and sister to pick out which pieces they may want. They are more than welcome to stop by and look at everything. If 2 want the same piece, maybe they can work it out or compromise. I want to put names on the pieces now so at least that is done and I can put the history behind each piece while mom is alive. I've already got my name on some pieces and my brother, while here Christmas suggested some items he would want so hopefully that goes well. I already have my things in storage for the past 2 plus years and I have all I need but I still would want some things with a history for memory sake but I don't need a lot.
Anything left will be sold and divided equally among us.
Thanks again for sharing and sorry for your loss. I try to take in as much of my mom each day. I know I will miss her so much.
I have a cousin in his 60's that had been living with his mother in her house. Why? Because he had no place else to go.
Anyway several years ago the mother fell ill and was in the hospital. On her death bed my cousin got her to sign over the house to him. He made sure a doctor and nurse signed off as witnesses. When the mother passed away the four other siblings were furious about what he did. One of the siblings repeatedly called my mother to complain but there was nothing that could be done.
Needless to say the cousin in question is no longer invited to family gatherings.
Wow, talk about taking advantage. That is so selfish of your cousin.
My mom's attorney didn't charge her much more than that. I was the lucky person to file probate. In my experience here in Texas, either works fine and both do the same sort of work. However, my mom's estate was complicated by her owning some mineral rights and also inheriting some that weren't in her name yet. So three years later and it's still dragging on though it's mostly settled
One thing I would do is stipulate a time frame for selling the house and dividing up the proceeds between you and your siblings. Your mom will need to be of sound mind to be able to add the codicil/amendment. You can't add it though you can tell the attorney what she'd like to have it say.
The person whose will it is can modify it without rewriting the entire document. That's called a codicil. It is common to revise a will when minor changes in what will become an estate asset occurs (selling or buying an asset, opening/closing bank accounts, change of your state of residence, addresses, etc). A major change such as altering how you want your estate to be dispersed or disinheriting an heir may take a more formal re-write.
This does not mean anyone else can alter the terms of the will. You need to understand this. Call the attorney who prepared the will to be sure you understand your authority (or lack thereof).
IME, don't nickel and dime yourself to death over a consultation fee. The small percentage I paid my probate attorney to help me distribute my parents' estates (which took 18 months to two years) was more than worth avoiding the legal pitfalls I might have faced without them.
Does anyone know why I should not get the attorney that wrote the will to be the estate attorney? Why would that not be a good idea?
2 people have told me to get my own attorney and not the one mom used to write up the will but why is that? I don't understand why that would matter. I almost think it would be a good idea.
Maybe it's because the 2 ladies that were adamant about that lived in CA where everything is more expensive and they are rich and have more involved wills.
Does anyone know why I should not get the attorney that wrote the will to be the estate attorney? Why would that not be a good idea?
2 people have told me to get my own attorney and not the one mom used to write up the will but why is that? I don't understand why that would matter. I almost think it would be a good idea.
Maybe it's because the 2 ladies that were adamant about that lived in CA where everything is more expensive and they are rich and have more involved wills.
I had the attorney who wrote up my parents' will also help me with their estate. Other than the mineral rights, it just wasn't that complicated and he didn't charge a percentage of the estate, he charged by the hour which was fine by me.
If your mom is of sound mind, you may want her to update all her accounts with you and your siblings as "payable upon death" or however it's worded in SC. You may also want to consider having her make out a power of attorney, and don't overthink it in my opinion if she trusts you or whoever she makes as her power of attorney. In Texas a general, durable power of attorney is all that's needed even to make medical decisions.
Does anyone know why I should not get the attorney that wrote the will to be the estate attorney? Why would that not be a good idea?
2 people have told me to get my own attorney and not the one mom used to write up the will but why is that? I don't understand why that would matter. I almost think it would be a good idea.
Maybe it's because the 2 ladies that were adamant about that lived in CA where everything is more expensive and they are rich and have more involved wills.
One reason I could think of is that the original attorney could have issues with attorney/client privilege. Your Mom would have to approve your speaking to them on her behalf. Your executor status doesn't take affect until your Mom passes. One thing I wanted to make sure you and your Mom get set up is Power of Attorney and Medical Advocate paperwork. If your mom's health deteriorated to the point that she could no longer give informed consent you (or whoever she designates) would have control of her assets and care. I'd urge you to make sure that this is in place. Without it, control would have to be court ordered or a consensus of all the next of kin (You and your siblings)
One reason I could think of is that the original attorney could have issues with attorney/client privilege. Your Mom would have to approve your speaking to them on her behalf. Your executor status doesn't take affect until your Mom passes. One thing I wanted to make sure you and your Mom get set up is Power of Attorney and Medical Advocate paperwork. If your mom's health deteriorated to the point that she could no longer give informed consent you (or whoever she designates) would have control of her assets and care. I'd urge you to make sure that this is in place. Without it, control would have to be court ordered or a consensus of all the next of kin (You and your siblings)
Right, and the OP could be in for a nasty surprise.
One reason I could think of is that the original attorney could have issues with attorney/client privilege. Your Mom would have to approve your speaking to them on her behalf. Your executor status doesn't take affect until your Mom passes. One thing I wanted to make sure you and your Mom get set up is Power of Attorney and Medical Advocate paperwork. If your mom's health deteriorated to the point that she could no longer give informed consent you (or whoever she designates) would have control of her assets and care. I'd urge you to make sure that this is in place. Without it, control would have to be court ordered or a consensus of all the next of kin (You and your siblings)
Thanks. Yes, mom and I went together to her attorney and the will was finalized and also the Health Care Power of Attorney was finalized. I am responsible for both. Mom has gone over all the life insurance, medical, and all other insurance she has should she need to go to a home. She is well covered in that area. so all of that is taken care of.
We've got everything organized and in folders.....so much paperwork.
I told mom the other day that to make things less stressful for me that I probably need to at least have an estate attorney picked out. She responded saying she thought the attorney that did the will would be good to have. She'd have no problem at all. In fact, I might get her to go with me so she's in the loop and could also sign off on the codicil of me staying in the house until house sold.
or what would be great is if the attorney just told me to write the addition of the codicil on a piece of paper and get mom to date and sign it. And since she has a copy of the will in her office, she could glance at it and just tell me how much she'd charge to help me with the will.
Last edited by diddlydudette; 12-28-2022 at 05:10 PM..
Wouldn't a living trust simplify matters and avoid probate?
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