Join Early Retirement Today
Reply
 
Thread Tools Search this Thread Display Modes
Old 09-30-2011, 10:19 PM   #61
Moderator
MichaelB's Avatar
 
Join Date: Jan 2008
Location: Rocky Inlets
Posts: 24,424
Quote:
Originally Posted by GregLee View Post
That's not much of an answer. Consulting the list of references that Google constructs, the very second one has this: "There are no laws that require probate." (info.legalzoom.com/wills-through-probate-4286.html)
Did you read the link after the part that says no laws require probate? The part that says
Quote:
Beneficiaries usually do not legally own the property that they have inherited until a will passes through probate.
Probate is required in most states and depends on the type and amount of probatable assets. Most assets not in trusts or IRAs are subject to probate when exceeding a limit that can be just a few thousand dollars. Exceptions are usually made for spouses or minor children. I'm not an attorney but have dealt with and am currently dealing with probate.

The advice here Some of the advice here has been good. Check with the court system to determine what the probate requirements are in your Mother's state of residence. Get >10 copies of the death certificate. The IRA beneficiary designations are final.

This may take many months. Don't try to circumvent the system. Here are a couple of web sites that provide attorney references.
Lawyers, Legal Forms, Law Books & Software, Free Information - Nolo
Lawyers Find A Lawyer, Law Firm, Attorney & Legal Services: martindale

NOLO also provides literature and information on many legal matters, including probate.
__________________

__________________
MichaelB is offline   Reply With Quote
Join the #1 Early Retirement and Financial Independence Forum Today - It's Totally Free!

Are you planning to be financially independent as early as possible so you can live life on your own terms? Discuss successful investing strategies, asset allocation models, tax strategies and other related topics in our online forum community. Our members range from young folks just starting their journey to financial independence, military retirees and even multimillionaires. No matter where you fit in you'll find that Early-Retirement.org is a great community to join. Best of all it's totally FREE!

You are currently viewing our boards as a guest so you have limited access to our community. Please take the time to register and you will gain a lot of great new features including; the ability to participate in discussions, network with our members, see fewer ads, upload photographs, create a retirement blog, send private messages and so much, much more!

Old 09-30-2011, 10:20 PM   #62
Thinks s/he gets paid by the post
 
Join Date: Mar 2010
Posts: 1,648
Quote:
Originally Posted by utrecht View Post
I guess I dont understand why a court has to be involved in any of this. As long as I document everything and nobody contests anything why would a court care? My brother who is written out of the will may or may not find out that there is a substantial amount of money involved but I seriously doubt he will contest even if he does find out.

Also, another problem is that she hasnt filed tax returns for 2009 or 2010 and I have no idea how to handle that. Im pretty sure she doesnt owe anything as her only income was SS and a few small withdrawals from her IRA. She told me specifically that she was keeping withdrawals lower than whatever amount would cause her to owe federal income tax. She has numerous letters from the IRS asking her to file and asking for a number to contact her. I can call the IRS to ask what I need to do but Ive been thru her paperwork already and I dont have nearly enough info to correctly file her returns.
utrecht....I realize this is all new to you and you may be grieving....but please get up to speed as soon as possible on what your role is as Executor. Your role...is to do all leg work and filings to close the estate as required by law in your jurisdiction. It is also to legally and formally notify all beneficiaries, send all beneficiaries a copy of the will.....as well as to protect the assets for all beneficiaries...which includes your brother.

If you waste assets or use assets for things not needed by the estate....or if you somehow receive more money that is not designated in the will or associated with the legal rates for Executor fees.....your siblings can sue you. And it happens!!!

Said another way.....being an executor does not give you control over her assets to do as you want. Her will controls her assets and beneficiary designations control her assets. As Executor...you have to follow the laws.

It can be a thankless.....very time consuming job .........
__________________

__________________
sheehs1 is offline   Reply With Quote
Old 09-30-2011, 10:33 PM   #63
Thinks s/he gets paid by the post
 
Join Date: Mar 2010
Posts: 1,648
Quote:
Originally Posted by utrecht View Post
I guess I dont understand why a court has to be involved in any of this. As long as I document everything and nobody contests anything why would a court care? My brother who is written out of the will may or may not find out that there is a substantial amount of money involved but I seriously doubt he will contest even if he does find out.
Not to throw another glitch in here....but you state your brother was written out. Was he indeed written out....meaning did it specifically state that he was? Or was he just not mentioned. There are/may be specific phrases or words that have to be used when writing the will to "cut out a child", even an adult child. Usually it requires "stating a legitimate reason". Only a lawyer can say. You may find....that what may appear simple on the first, second or third read of a will....is really not simple. They are or can be like puzzles.
As Executor....I don't think you want to tell your siblings whether they were cut out or not. That is rendering a "legal opinion"....and again be careful about getting sued. It is the beneficiarys' (your siblings in this case) responsibility to find out what their legal rights are. But first you need to send them all a copy of the will so they can do just that. Typically all mailings to beneficiaries should be done via certified mail....so you can prove you did it.
__________________
sheehs1 is offline   Reply With Quote
Old 09-30-2011, 10:36 PM   #64
Thinks s/he gets paid by the post
GregLee's Avatar
 
Join Date: Oct 2010
Location: Waimanalo, HI
Posts: 1,881
Quote:
Originally Posted by MichaelB View Post
Did you read the link after the part that says no laws require probate? The part that says Probate is required in most states and depends on the type and amount of probatable assets.
Yes, I did. And I noted the adverb "usually" in the statement "Beneficiaries usually do not legally own the property that they have inherited until a will passes through probate." And a bit later you will have seen a paragraph describing "joint tenancy", which describes a circumstance in which beneficiaries do own a property they have inherited, without probate. In a posting above, I said that probate was not necessary "unless she had property whose ownership is left unclear." In the case of joint tenancy (with rights of survivorship), the ownership is left clear. Though not a lawyer, I'm reasonably clear about some of this, because I consulted a lawyer about inheriting my mother's property, though her will was never probated.
__________________
Greg (retired in 2010 at age 68, state pension)
GregLee is offline   Reply With Quote
Old 09-30-2011, 10:44 PM   #65
Give me a museum and I'll fill it. (Picasso)
Give me a forum ...
 
Join Date: Jul 2006
Posts: 11,017
Condolences on the death of your mother, Utrecht.
__________________
Meadbh is offline   Reply With Quote
Old 09-30-2011, 10:49 PM   #66
Give me a museum and I'll fill it. (Picasso) Give me a forum ...
REWahoo's Avatar
 
Join Date: Jun 2002
Location: Texas Hill Country
Posts: 42,078
Quote:
Originally Posted by GregLee View Post
Well, you're the one who said earlier "it's the law". I knew that was wrong...
Each state has specific laws on how estates should be administered. Although probate may not be required in every circumstance, an executor should not attempt to carry out his/her duties without doing at least what you did - consulting with an attorney.

BTW, you should have gone to law school - that way you'd have a good excuse not to be so darn polite.

On we go...
__________________
Numbers is hard

When I hit 70, it hit back

Retired in 2005 at age 58, no pension
REWahoo is offline   Reply With Quote
Old 09-30-2011, 10:50 PM   #67
Moderator
MichaelB's Avatar
 
Join Date: Jan 2008
Location: Rocky Inlets
Posts: 24,424
Quote:
Originally Posted by GregLee View Post
Yes, I did. And I noted the adverb "usually" in the statement "Beneficiaries usually do not legally own the property that they have inherited until a will passes through probate." And a bit later you will have seen a paragraph describing "joint tenancy", which describes a circumstance in which beneficiaries do own a property they have inherited, without probate. In a posting above, I said that probate was not necessary "unless she had property whose ownership is left unclear." In the case of joint tenancy (with rights of survivorship), the ownership is left clear. Though not a lawyer, I'm reasonably clear about some of this, because I consulted a lawyer about inheriting my mother's property, though her will was never probated.
Notwithstanding the adverbs or the paragraph describing "joint tenancy", based on
Quote:
1) Do I need to file the will somewhere?
2) Does the will supercede the beneficiary info on her IRA. There are 4 of us kids and we are all listed 25% each on her IRA but her will specifically excludes one of her kids entirely and says that all of her assets should be split 3 ways. My brother who has been excluded is not here with us and has no idea what money she does or does not have. I dont expect him to cause a problem but if the IRA beneficiary is not superceded by the will I assume they will send his portion directly to him?
3) My mother has a 6 figure estate, but I believe there is no death tax since her estate is under a million?
4) I dont think she has life insurance but is there some way for me to find out? Is there some registry somewhere that can check? I cant very well call every insurance company and ask.
and without additional detail it is likely probate would be required. Laws governing probate and inheritance differ by state, so without that information more detailed recommendations are difficult to give.
__________________
MichaelB is offline   Reply With Quote
Old 09-30-2011, 11:51 PM   #68
Thinks s/he gets paid by the post
 
Join Date: Jul 2010
Location: Chicago
Posts: 1,001
My condolences on your mother's passing.

I can tell you the Power of Attorney is of no use when the person dies. Any insurance payouts and assets held with POD, TOD, Jt. tenancy, bypass wills and probate.

If the estate value < 100k, you could use the Small Estate Affidavit, but you mentioned it's more than this already. If your mother held any real estate in her name only, you need to go to probate and you also are required to do a public notice for a minimum time (6 months in IL) to allow anyone that's owed money to make their claim against the estate for repayment.

This is what I had to do for IL, yours may be different: As an executor, you need to get a "Letter of Office" from the court (no one wanted an original) and certified death certificates (some required the original, rest took copies after verifying it was original) so you can take care of all the financial transactions and sell real estate if necessary. You need to keep all records of financial transactions and any expenses incurred as you're required to file a final accounting to the court and all parties before you can distribute any proceeds. I just completed my long journey as an executor this year with two problem siblings and futile attempts to challenge beneficiary designations. Even if the claims are baseless, be prepared for everything and anything to happen if you think anyone might cause an issue. One thing that attorneys never like to mention, in the event the estate was to go negative, the executor could end up footing the bill! I came close, but my attorney didn't want to tell me this until it almost happened and I asked 2-3 times.

You need to check if there's any estate taxes for the state you are in as some have this.

For insurance policies, the only way I found them was by collecting the mail and searching any statements as I went through old paperwork.
__________________
Dimsumkid is offline   Reply With Quote
Old 10-01-2011, 12:46 AM   #69
Thinks s/he gets paid by the post
DangerMouse's Avatar
 
Join Date: Jan 2007
Location: Silicon Valley
Posts: 1,812
Sorry to hear about the passing of your mother. I hope you and your siblings get an opportunity to grieve as you should.
__________________

I be a girl, he's a boy. Think I maybe FIRED since July 08. Mid 40s, no kidlets. Actually am totally clueless as to what is going on with DH.
DangerMouse is offline   Reply With Quote
Old 10-01-2011, 07:25 AM   #70
Moderator
Walt34's Avatar
 
Join Date: Dec 2007
Location: Eastern WV Panhandle
Posts: 16,511
Quote:
Originally Posted by sheehs1 View Post
THe best thing to do is to contact your local court system. They will tell you what you need to do. You can also quickly search the Internet for responsibilities of an "Executor". This is not a quick "job". Courts typically have or retain the services of a local lawyer and whose title is something like a "Manager of Accounts"....to work on behalf of the court system when a death occurs.
Like several others here I was the executor of my mother's estate. It is a steep learning curve and was a part time job for the first six months, then things slowed down a bit but it still wasn't fully settled for a year. And hers was pretty simple.

Understand that the estate is a separate legal entity, like a corporation. As executor, your fiduciary responsibilities are to the estate, not the heirs. Be careful to establish separate bank accounts (no commingling of estate funds with your own!) and document every penny in or out. If you improperly distribute funds, you as the executor are personally responsible for it. That means all the estate's creditors are fully paid off before the heirs get a nickel or the difference comes out of your pocket.

Where I was the court system was very helpful, they even had downloadable forms in MS Word format to fill out. Regarding the past taxes, I started in on that but even though I do my own tax returns this one was going to be so complex that I figured for a "one-time" case it was worth hiring a tax guy for it. The cost was a reasonable $200 for something that would have taken me several weeks to figure out.

And yes you will need ~20 death certificates at a minimum.

A friend at work loaned me a couple of books on handling an estate but if he hadn't I would have bought them. Well worth buying.
__________________
I heard the call to do nothing. So I answered it.
Walt34 is offline   Reply With Quote
Old 10-01-2011, 08:44 AM   #71
Thinks s/he gets paid by the post
 
Join Date: May 2006
Location: Largo
Posts: 1,945
Quote:
Originally Posted by Nords View Post
Even if she owes no tax (or is owed a refund) there are still penalties for not filing a return.
I believe the penalty for failure to file is calculated on the amount owed. If she owed nothing, the penalty is $0.
__________________
Buckeye is offline   Reply With Quote
Old 10-01-2011, 08:46 AM   #72
Thinks s/he gets paid by the post
 
Join Date: Nov 2006
Posts: 2,268
Ive done a little research and found out that here in Texas I do need for the will to be probated due to their being titled property (house, car and bank account). I also found out that there is no state death tax here.

I already ordered 10 death certificates. I guess I'll have to go back and order more if needed. I was told that SS needed one, but they didn't so maybe not everyone will require an original.

My brother is specifically excluded in writing in the will, as are my mothers husbands adult children. Her husband died 5 years ago and they contested his will and fought it for several years tooth and nail. They lost but it would not surprise me if they tried to contest this one, although they will probably not find out about my mothers death for a long time if ever. I wonder if I have to send my brother a copy of the will since he is not a beneficiary? I now know that he will get 25% of her IRA even though he is excluded from the will. I dont think he knows that she has any other money so Im hoping there wont be any massive tension caused by this (although we dont really speak anyway which you could probably deduce by him being written out of the will). Its a bit awkward right now though because his daughter (my neice) is here with us now helping out with things and she has no idea about the will. She is very sweet and nothing like him. She loves to bake and Ive offered her my mother baking items and pots and pans. However, I guess at this point I cant let anything leave the house until I speak to an attorney.

As far as co-mingling assets, I'm already having to pay for a lot of things with my own money since I have no access to her bank accounts yet. Ive had to pay all of her bills that were due and over due, pay for the cremation and things like that. I assume this is customary and normal and wont cause a problem later when I reimburse myself as long as I keep records?
__________________
utrecht is offline   Reply With Quote
Old 10-01-2011, 08:51 AM   #73
Thinks s/he gets paid by the post
 
Join Date: Nov 2006
Posts: 2,268
The problem with doing her taxes isn't that it will be complicated enough to need a tax guy. Its that I don't have any records. She hasn't worked in about 4 years so the only income should be SS and IRA withdrawals. I do have the name of the IRA custodian so I guess can contact them for the info I need? I also have her SS statement so maybe it wont be as difficult as I thought. I doubt that her property taxes would be enough to get her over the standard deduction. The house is paid for so no mortgage interest to worry about.
__________________
utrecht is offline   Reply With Quote
Old 10-01-2011, 09:01 AM   #74
Thinks s/he gets paid by the post
 
Join Date: May 2006
Location: Largo
Posts: 1,945
Quote:
Originally Posted by utrecht View Post
The problem with doing her taxes isn't that it will be complicated enough to need a tax guy. Its that I don't have any records. She hasn't worked in about 4 years so the only income should be SS and IRA withdrawals. I do have the name of the IRA custodian so I guess can contact them for the info I need? I also have her SS statement so maybe it wont be as difficult as I thought. I doubt that her property taxes would be enough to get her over the standard deduction. The house is paid for so no mortgage interest to worry about.
She might be due refunds if she had taxes withheld from her IRA withdrawals. You would be able to receive any available refunds going back up to 3 years. 2008, 2009, & 2010 at this point in time.

Based on her comment to you about keeping withdrawals just low enough to avoid taxes, sounds like she might not have had any taxes withheld.
__________________
Buckeye is offline   Reply With Quote
Old 10-01-2011, 09:02 AM   #75
Moderator
MichaelB's Avatar
 
Join Date: Jan 2008
Location: Rocky Inlets
Posts: 24,424
Good to see youíre making progress.

Social Security needs an original copy of the death certificate regardless of what they have told you.

You need a probate attorney to assist you. You may have to pay some bills, and you need to keep very careful receipts, but it is also customary to inform creditors that the person is deceased and they now need to wait to collect without charging penalties. Every effort should be made to pay as little as possible with your funds.

As executor you will need to determine what has value in your motherís belongings. Things like clothing, kitchen and other household items can be removed, given to relatives, friends or donated as long as they donít have real commercial value. If probate takes 6 months, you donít want to have to wait that long to begin dealing with the things left behind.

You also have no obligation to inform anyone about the will, even if they are beneficiaries, until probate is concluded. Until you have paid her obligations it is best not to create expectations regarding potential inheritance.
__________________
MichaelB is offline   Reply With Quote
Old 10-01-2011, 09:10 AM   #76
Give me a museum and I'll fill it. (Picasso)
Give me a forum ...
 
Join Date: Feb 2007
Posts: 5,072
Sorry for your loss.

You probably should consult with an attorney.
__________________
chinaco is offline   Reply With Quote
Old 10-01-2011, 09:12 AM   #77
Thinks s/he gets paid by the post
 
Join Date: May 2006
Location: Largo
Posts: 1,945
Quote:
Originally Posted by MichaelB View Post
As executor you will need to determine what has value in your motherís belongings. Things like clothing, kitchen and other household items can be removed, given to relatives, friends or donated as long as they donít have real commercial value. If probate takes 6 months, you donít want to have to wait that long to begin dealing with the things left behind.
Would it make sense to take pictures of every item that is distributed (and record to whom it was given) in case someone tries to say mom's pots and pans were gold-plated?
__________________
Buckeye is offline   Reply With Quote
Old 10-01-2011, 09:39 AM   #78
Moderator
MichaelB's Avatar
 
Join Date: Jan 2008
Location: Rocky Inlets
Posts: 24,424
Quote:
Originally Posted by Buckeye View Post
Would it make sense to take pictures of every item that is distributed (and record to whom it was given) in case someone tries to say mom's pots and pans were gold-plated?
It certainly doesn't hurt. I would definitely keep photos and records of anything given to charity or not for profit organizations.
__________________
MichaelB is offline   Reply With Quote
Old 10-01-2011, 10:10 AM   #79
Thinks s/he gets paid by the post
 
Join Date: Nov 2006
Posts: 2,268
Quote:
Originally Posted by Buckeye View Post
She might be due refunds if she had taxes withheld from her IRA withdrawals. You would be able to receive any available refunds going back up to 3 years. 2008, 2009, & 2010 at this point in time.

Based on her comment to you about keeping withdrawals just low enough to avoid taxes, sounds like she might not have had any taxes withheld.
Yes, she did have taxes withheld. 20%
She was withdrawing in the neighborhood of $20K-$30K the last year or two that I know of.
__________________
utrecht is offline   Reply With Quote
Old 10-01-2011, 10:15 AM   #80
Thinks s/he gets paid by the post
 
Join Date: Jul 2010
Location: Chicago
Posts: 1,001
You'll need to get a Federal ID# from the IRS as the executor. When there's any money that might come into the estate, i.e., when you sell property, then you can open a bank account for this to pay bills out of. Anything you've had to pay for out of your own pocket will be reimbursed from the estate and will show up on the final accounting, keep all records of these transactions. As far as giving away items, you need to take inventory of all items and check against your mother's wishes, if any. Other than that, you can sell them and put the proceeds in the estate account or distribute based on sentimental value, fairness or need? You should also get a fair value of the property at date of death, this may help with any potential taxes from a gain/loss perspective when you settle the estate. Any financial contacts you have, IRA custodian, and mention someone is deceased, they have a special process that immediately locks down information. They will require a cert. death certificate at the least and possibly the Letter of Office to release anything to you.
__________________

__________________
Dimsumkid is offline   Reply With Quote
Reply


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools Search this Thread
Search this Thread:

Advanced Search
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off
Trackbacks are Off
Pingbacks are Off
Refbacks are Off


Similar Threads
Thread Thread Starter Forum Replies Last Post
Anyone here trade options? utrecht Stock Picking and Market Strategy 264 05-25-2017 10:14 PM
Stock Options? Dr.Crusher FIRE and Money 16 01-14-2012 04:12 PM
Help with Utah Camping Trip Options TromboneAl Travel Information 20 09-25-2011 01:01 PM
RE in a cheaper country, problem in returning back to mother country landover Life after FIRE 33 08-27-2011 12:14 AM
So Worried About My Retired Mother Smith1974 Hi, I am... 20 08-15-2011 04:34 AM

 

 
All times are GMT -6. The time now is 11:53 PM.
 
Powered by vBulletin® Version 3.8.8 Beta 1
Copyright ©2000 - 2017, vBulletin Solutions, Inc.