Peripherally involved with transfer of assets for a loved one, I am amazed at wild statements made by my ex-M.I.L.'s "accountant. An example: he appears not to have heard of "right of survivorship".

Most bank accounts that are held in the names of two people carry with them what's called the “right of survivorship.” This means that after one co-owner dies, the surviving owner automatically becomes the sole owner of all the funds.

All financial assets have beneficiary designations recorded by the financial institution. "Possession is nine-tenths of the law" probably applies to the residual. There is no real estate. In the case of this particular loved one, asset distribution is avoiding probate and is relatively uncomplicated.

---

In the event I do not live forever, I'd want to make it easy for my brother to take possession of my meager earthly silver and plate, and maybe real estate.

• Is a "living will" enough for avoiding probate in most uncomplicated situations?

• Must the will be filed with the county?

• How easy is it to change designations on a living will?

• May a living will affect non-probated transfer of real estate by stating "real estate at XYZ Happy Lane and contents thereof" or will Tommy Taxman want to ascertain I have not stockpiled $20M in gold bars?

• Will my beneficiaries need only arrive at an establishment holding my assets, living will and death certificate in hand, to claim said assets?

Thank you.

I am not an expert in these types of matters but I consulted an attorney and accountant and ended up setting up a trust for asset protection in the event of my demise.

That wasn't the only thing I did but it seems like you would benefit from a fairly inexpensive and simple consult with an attorney.

I am not an attorney, but my best friend is a Probate attorney and we have discussed this many times. The only real way to guarantee no probate is to go through an attorney and get a good trust.

quote:

Originally posted by amhaynie:
I am not an attorney, but my best friend is a Probate attorney and we have discussed this many times. The only real way to guarantee no probate is to go through an attorney and get a good trust.

The Transfer on Death (TOD) is another way of avoiding probate. It has several advantages over a will.

https://www.thebalance.com/usi...void-probate-3505416

Get thee to an estate planning lawyer in your state. That's the only place you'll get advice that's worth a damn. Estate planning is a particularly nuanced area of law, and it is extremely state-specific.

This is not an area where DIY is a good idea. In my prior practice, I had a very uncomfortable front row seat to many slow motion trainwrecks that all were caused by attempted home-brewed estate planning.

Transfer on death accounts can be a tool in the toolbox. What the institution holding the account will require to actuate the T.o.D. is mostly up to the institution.

T.o.D. instruments to convey real estate are a creation of statute. I don't know if your state permits them or what is required to complete the T.o.D. after death. The couple that I have seen aren't particularly "user-friendly" - a trust would be more useful and not carry such a risk of the asset falling back into probate if the formalities to complete the transfer aren't complied with in a timely manner.

Generally speaking, you're probably best served by a fairly simple, revocable grantor's trust. Make that your #1 topic of discussion with the estate planning attorney.

...and you should know that a "living will" doesn't handle property dispositions of a testator. Rather, it's a healthcare directive detailing such things like if or when you would rather just have the plug pulled instead of continuing to be kept alive by extraordinary means, etc.

I am no legal authority but I have had some exposure to four different trusts and every one turned into a time consuming train wreck. The trustee must have at least two qualities. They must be capable and they must be honest. If they are deficient in either or both qualities it will not be well managed and executed according to the wishes of the decedent who obviously is not around to clarify anything. I could write a book on these four horror stories.

Listen to ShneaSig.

These threads are always full of half-understood, half-wrong, and misstated advice about how someone's aunt did it in another state, given by people who don't even play a lawyer on TV.

As ShneaSig says, estate planning is particularly esoteric. You need a lawyer.

(And by the way, avoiding probate always seems to be a goal. Many times, it probably shouldn't be a goal as simply probating a will and distributing assets is fine, and preferable to creating some complicated structure. More "sophisticated" estate planning may be misplaced.)

quote:

you're probably best served by a fairly simple, revocable grantor's trust. Make that your #1 topic of discussion with the estate planning attorney.

Thanks, all. Not only do I not play a lawyer on TV, I'd look at you quizzically with mention of the subject, sort of like Bill Nighy doing his "surprised" look.

The word 'probate' brings to mind an automatic one-year waiting period during which my brother has to maintain the property he would eventually sell. I'm basing fear on complete lack of knowledge.

quote:

Originally posted by amhaynie:
I am not an attorney, but my best friend is a Probate attorney and we have discussed this many times. The only real way to guarantee no probate is to go through an attorney and get a good trust.

That is exactly correct! We have trusts in place for that very reason. When my MIL passed last year her trust allowed us to settle her estate without any hassles what so ever. They are worth every penny they cost.

We just went to an attorney for just this reason. He said probate shouldn't be feared. Its means to prove. You just have to prove you are who you say you are.

quote:

Originally posted by cyberiad:
My wife and I formed a trust mainly because we don't have children and I want to make the disposition of my estate as simple as possible for my family. However, a trust isn't required, as others have said.

My late Mother's estate would have been quite simple save for the fact that she had an account that had no named beneficiaries and her vehicle was registered in her name only which made disposing of it more complex than it needed to be. The main thing I learned was to ensure all accounts have beneficiaries or "TOD" and that all vehicles and property are jointly or co-owned where possible. So while her estate was 'in probate' other than a bit of paperwork I would have had nothing to do if all of her assets had been 'assigned' before her passing. All vehicles I buy from now on will have both my name and my wife's name on the title.

And here's a great example of the sort of well meaning but nonspecific, internet advice which will lead to problems - not because of any ill intent of the poster, but because of the way the law works in these areas. As a general rule, "jointly titled" property is an unclear concept or an umbrella term that in and of itself doesn't properly describe a legal principle used to refer to various ways of owning property, which all have very different circumstances, applications, and outcomes. If you don't know the difference between such modes of ownership as "tenancy in common," "joint tenancy (with a right of survivorship)", and transfer/pay on death, and when or if such principles apply to the sort of property at issue, then - again - get estate planning help specific to your state from a lawyer.

cyberiad - my apologies to you - I'm not intending to pick on you or disparage you, and you raise some points which could work for some folks, depending on their circumstances; and it's very evident you wish only to help. I'm afraid your post provides a helpful illustration of the numerous pitfalls that can lay in wait for the unsuspecting in this field of law.

I was a trust officer for a very long time and worked with many hundreds of trusts over that time. I ended my career as the Executive Trust Officer (boss) of a mid sized trust department, I jsut offer that as a micro-resume.

Typically, trust officers in banks and trust companies don't do estate planning from a base level, they work with a client's attorney to make sure the document can be administered wisely and well by their company but to do that they have to know the law and the process but they are primarily involved with the investment management and administration well after the estate plan is drafted.

The point is, listen to the lawyers that are chiming in here. In my formerly expert opinion they are saying what you need to hear. Once the thing (trust, estate, will) is screwed up it will take way more dough to straighten it out than to get it done right the first time.
If you ever hear yourself saying, "I've raised my kids right they will take care of it", RUN, don't walk, to the nearest estate planner and take his advice and pay him with a smile. Don't put your survivors into the position that we hear about in thread after thread on this forum. If you trust them enough to think they can do it they are good enough kids not to have to. They don't deserve what's coming down the pike at them.

P.S. most trusts and estates don't need a professional trustee but your attorney will know the ins and outs there and know who will get it right if you do need one.

That will be $300 please.

quote:

Originally posted by Woodman:

quote:

you're probably best served by a fairly simple, revocable grantor's trust. Make that your #1 topic of discussion with the estate planning attorney.

Thanks, all. Not only do I not play a lawyer on TV, I'd look at you quizzically with mention of the subject, sort of like Bill Nighy doing his "surprised" look.

The word 'probate' brings to mind an automatic one-year waiting period during which my brother has to maintain the property he would eventually sell. I'm basing fear on complete lack of knowledge.

A buddy here in Texas just probated his wife's simple will. (I don't do that work.) It was all over in a couple of months. No biggie. It can vary from state to state, and whether there are any problems. Probating a simple will and distributing assets should be no biggie.

And, again, the trust fans are coming out of the woodwork. ASK YOUR LAWYER if a trust makes sense for what you are doing. It may be more complicated than other options, and overkill.

quote:

Originally posted by jhe888:

quote:

Originally posted by Woodman:

quote:

you're probably best served by a fairly simple, revocable grantor's trust. Make that your #1 topic of discussion with the estate planning attorney.

Thanks, all. Not only do I not play a lawyer on TV, I'd look at you quizzically with mention of the subject, sort of like Bill Nighy doing his "surprised" look.

The word 'probate' brings to mind an automatic one-year waiting period during which my brother has to maintain the property he would eventually sell. I'm basing fear on complete lack of knowledge.

A buddy here in Texas just probated his wife's simple will. (I don't do that work.) It was all over in a couple of months. No biggie. It can vary from state to state, and whether there are any problems. Probating a simple will and distributing assets should be no biggie.

And, again, the trust fans are coming out of the woodwork. ASK YOUR LAWYER if a trust makes sense for what you are doing. It may be more complicated than other options, and overkill.

To add on, ask some poignant questions about what the probate fees are or how they are calculated. There are jurisdictions where the probate fees can be significant and are a percentage of the value of the probated estate, and there are others where the fees are essentially nominal court costs and filling fees.

After my wife passed away, my accountant took the time to sit down with me and give me a rundown of where I should go from there. No kids and one older sister. So the estate will go to two nieces and a few charitable organizations.

A trust is what he suggested and got me the name of an expert in the field. Not a big deal but it avoids probate. It also spells out any special considerations such as care for the dogs if they are still a concern.

I cost a few thousand but the piece of minds was worth it.

My only suggestion is get someone in that area and not so random lawyer.

Here’s another disadvantage to going through probate, from LegalZoom.com:

quote:

Once your will is offered to probate, it becomes a matter of public record. Anyone who has an interest in such matters can go to the courthouse and look at your will. A notice is published in the newspaper or posted at the courthouse stating the fact of death, the identity of the proposed personal representative, and that a will has been offered for probate.

quote:

Originally posted by ShneaSIG:
Get thee to an estate planning lawyer in your state. That's the only place you'll get advice that's worth a damn. Estate planning is a particularly nuanced area of law, and it is extremely state-specific.

^^^^^ For the win.


I’m a big fan of what is called a family revocable trust around here. I became such after getting educated on such by an excellent estate planning attorney who happened to be local.

The only thing I’ll add is that you can save yourself some money by getting educated by the lawyer, going off and figuring out exactly what you want for the “who gets what when I’m gone” section on your own time, writing it out as clearly as you can, then taking it to the attorney to be used in preparing that section. It will probably be written differently and the attorney may bring up things you didn’t consider that result in changes, but the more thinking and deciding you can do outside of the attorney’s office with his or her meter *not* running, the more money you’ll save. That said, this an area where a good attorney is worth every penny you pay him or her. Just use their time wisely. This is especially the case if a spouse is involved and you need to talk things through and reach agreement.

quote:

Originally posted by rscalzo:
A trust is what he suggested and got me the name of an expert in the field. Not a big deal but it avoids probate. It also spells out any special considerations such as care for the dogs if they are still a concern.

I cost a few thousand but the piece of minds was worth it.

My only suggestion is get someone in that area and not so random lawyer.

Most attorneys doing this work will also do a will, sometimes called a “pour-over” will. The will is pretty simple and basically says that any assets that you owned as an individual go to the trust. The reason for this is that we are all human and through forgetfulness, laziness, or some other reason we may take title to one or more assets in our own name rather than putting them in the trust. Unfortunately, those assets will have to go through probate, though the “who gets what” part is in the trust rather than in the will and is less likely to become public information. Probate fees will still apply to any assets held individually though.

quote:

Originally posted by ShneaSIG:

[ ... ]

And here's a great example of the sort of well meaning but nonspecific, internet advice which will lead to problems - not because of any ill intent of the poster, but because of the way the law works in these areas. As a general rule, "jointly titled" property is an unclear concept or an umbrella term that in and of itself doesn't properly describe a legal principle used to refer to various ways of owning property, which all have very different circumstances, applications, and outcomes. If you don't know the difference between such modes of ownership as "tenancy in common," "joint tenancy (with a right of survivorship)", and transfer/pay on death, and when or if such principles apply to the sort of property at issue, then - again - get estate planning help specific to your state from a lawyer.

cyberiad - my apologies to you - I'm not intending to pick on you or disparage you, and you raise some points which could work for some folks, depending on their circumstances; and it's very evident you wish only to help. I'm afraid your post provides a helpful illustration of the numerous pitfalls that can lay in wait for the unsuspecting in this field of law.

My apologies, I deleted my post and the copy you quoted. The last thing I want to do is lead someone astray in matters of law.

quote:

Originally posted by sjtill:
Here’s another disadvantage to going through probate, from LegalZoom.com:

quote:

Once your will is offered to probate, it becomes a matter of public record. Anyone who has an interest in such matters can go to the courthouse and look at your will. A notice is published in the newspaper or posted at the courthouse stating the fact of death, the identity of the proposed personal representative, and that a will has been offered for probate.

Which nobody does - go to the courthouse and read the will, that is. Remember, Legal Zoom is trying to sell you trust documents. And, by the way, Legal Zoon is shit. Stay away. That is legal self help, and as noted, in this ares, you are as likely to make a mess as avoid one if you DIY it.