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Estate-probate questions
Old 07-16-2009, 10:42 PM   #1
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Estate-probate questions

In Lusitan's thread about non-investing-savvy surviving spouses, Freebird mentioned "The Widow's Handbook" (Simple Investment Strategy for Non-Savvy Surviving Spouse).

I read the book, thought "Yup, looks good", and put it on our library returns pile. Spouse fished it out of the pile, took the title to heart, and came up with a few pointed questions which I'm sure will have no effect on my longevity (right, honey?).

We have most of this figured out. Ideally the search-and-rescue guys don't find me in the 10-12 foot surf and what's left washes ashore a few months later I expire at home or at hospice or at the hospital. Spouse makes the phone calls and eventually the UH medical school whisks away the remains and leaves a receipt for a death certificate. Spouse gets about 20 certified copies of the death certificate (for a fee) and starts notifying the various debtors & financial institutions. If UH doesn't want my remains then I'm composted in the back yard cremated on the cheap and scattered in the surf at White Plains Beach. No big deal.

We have a "in case we wake up dead" folder with all the appropriate account names, website logins, and passwords. She'd be able to take over the finances, the bills, the e-mails, and even the obituary post. Our kid could get to it if she needed to. No problems there either.

Everything we hold is in joint accounts (or joint with right of survivorship) or titled as "tenancy in the entirety". Our wills establish marital bypass trusts (although that seems unlikely ever to be necessary). In my case, spouse is executor. She and her brother (a tax CPA) are co-trustees for setting up the trust, at which point he fires himself and she takes over as sole trustee. (If both spouse and I were aboard the same Rockin' Roller Coaster then he's the executor for our kid.) Pretty straightforward boilerplate.

But her questions on the mechanics of the above have raised a little confusion. I know she could hand her credit card to a lawyer and everything would be taken care of-- for a fee.

Is that necessary? For example, is it possible for a surviving spouse to take a copy of a will and a death certificate to the local courthouse and have it processed by a clerk?

Would a lawyer have to draw up the trust or would the will's boilerplate serve as the trust document?

If a trust has to be drawn up, could that be handled by the military legal service center that drafted the will? Or would she have to hire a "real" lawyer?

Once the trust paperwork is drawn up and she/brother carve up the assets into the trusts, could she simply go to a title company and the state DMV to retitle the home & vehicle? Could she just fax over paperwork to Fidelity to retitle the taxable accounts and my IRA? I appreciate that there are specific issues on retitling things like IRA accounts, but she'd follow the guidance of the latest Ed Slott book or website.

She'd probably ask her brother to handle the tax returns.

Are there any other administrative processes that require lawyer work or court appearances? Or is the rest of the process DIY?


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Old 07-16-2009, 11:06 PM   #2
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It all depends on your state...

I know some states require you to have a lawyer and pass everything through the courts.... which is why they sell living trusts to those people..

Here in Texas, (well, at least a long time ago) you needed a lawyer to file the will for probate, but if the will was written properly you told them to pound sand... you did not want to under court supervision... so, file the will, file an inventory and you are done...

As for the accounts... most will take a copy of the death certificate and letters of testamentary (sp?) and transfer what you want... they usually have a form or something else they want that is their own...

If the accounts are all like you say, you do not have to do anything... just let them keep going as is....

As for your trust.... that should already be written... just waiting around to be funded... well, at least IMO...

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Old 07-16-2009, 11:16 PM   #3
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Don't know the answer to your questions but thumbed through a book titled something like this once at the library and thought it looked interesting: Estate & Trust Administration For Dummies: Margaret Atkins Munro, Kathryn A. Murphy: Books

There were others listed if you google "will and trust administration".
I think the one I saw at the library only dealt w/ living trust.

In some states, if the probate estate is < some number, there are shortcuts you get to do if the stuff not covered by jt tenancy, beneficiary accounts like insurance, TOD, IRAs is not too large, it may be simpler. Not sure about HI.
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Old 07-17-2009, 06:13 AM   #4
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When my mother passed away I handled the estate. She had a will, and there were no trusts. From a legal perspective it was fairly simple but the learning curve is a steep one and it was almost a part time job for a year. No lawyer was needed, although I did go to see one to make sure I hadn't missed something. He didn't even charge me anything. We spent more time talking about my job - he was fascinated by it and the legal issues of computer crime - than the estate issues.

This was in MD though, and I believe that some states do require a lawyer to at least look over the paperwork. If you've done all the "grunt work" the expense of the lawyer should be minimal. It might be worthwhile to have one look it over to make sure that what you want to happen is actually what does happen.

DIY legal paperwork doesn't always work out the way the person intended.
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Old 07-17-2009, 07:23 AM   #5
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I often mention the brain fog that occurs by the sudden shock of death of a spouse and here is an example I know I had everything retitled and I know I did that part myself after my husband's death but no matter how hard I try I can not remember the details .To the world you look like you are fine but in reality most widows are in a brain fog for several months. That's why I'd probably encourage your wife to have help with these issues even though she is more than competent to handle them.
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Old 07-17-2009, 07:34 AM   #6
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Depending on what the estate tax laws provide at the time, there may be various decision that have to be made when the first of you dies to maximize the estate tax exemption of the deceased spouse. That is one reason to see a lawyer. Both in setting up the bypass trust to maximize options and after one of you dies. If your will currently provides for a bypass trust the terms should already be in the will and will not be drafted when one of you dies.

Also, odds are you will need a lawyer for the probate. Depending on Hawaii law, probate could be a simple cheap process or an expensive one.

No more lawyer stuff, no more political stuff, so no more CYA

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Old 07-17-2009, 12:05 PM   #7
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Originally Posted by Moemg View Post
I often mention the brain fog that occurs by the sudden shock of death of a spouse and here is an example I know I had everything retitled and I know I did that part myself after my husband's death but no matter how hard I try I can not remember the details .To the world you look like you are fine but in reality most widows are in a brain fog for several months. That's why I'd probably encourage your wife to have help with these issues even though she is more than competent to handle them.
I second that "brain fog" comment. My husband had a will and most of our accounts were "Pay on Death" except for a very few low dollar amount accounts. Those little oddball accounts were worrisome...since I had no idea how to close them out. The lawyer I used, was recommended by my accountant. He created an affidavit (just a letter) to be copied and used to access those odd ball accounts and close them out. In my state, at that time, no probate was needed for husband/wife joint accounts (POD). Any accounts held individually, not jointly held, and less than $25K, were covered by the affidavit.

The lawyer also took care of the title change on the house for me too. I was very grateful for all the help I received from my accountant and my lawyer. He charged very little and I had him draw up a new will for me at the same time.
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Old 07-17-2009, 02:15 PM   #8
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I was executor (and sole heir) for my mother. No trusts involved and an estate below the taxable (both Fed and Commonwealth) level. I paid a lawyer by the hour to help guide me through the process. (Some lawyers want a percentage of the estate - tell them to go to hell. There is often no more work involved in a a $1M estate than in a $200K estate. Just pay them by the hour + their legitimate expenses.)

I was also executor for my aunt who died several years after my mother, also in MA. I did most of it without a lawyer, following the procedures used in settling my mother's estate. Since there were more heirs, there was a fair amount of work involved and I kept good track of my hours and paid myself about $50/hr from the estate proceeds. None of the heirs complained.
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Old 07-17-2009, 05:41 PM   #9
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One source of informed legal information is the NoLo press. I ordered their book for California on Wills & Trusts some time ago. It even came with a CD that had the documents on it. Then it sat on my desk for a year while I had more fun doing productive things. Let's face it, this is necessary but purely defensive in nature. I usually do things myself but this was really hard for me to get involved in.

Have since updated our trust with our estate lawyer from years past. Since we have moved we did it all by phone. I think things go faster this way then in person. Got a nice binder with all the stuff well laid out. Affords some peace of mind.

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