What if you want to leave everything to your spouse, but only if they do the same? Agreements to draft a will in such a way (or to not draft a will) are not always honored or successful. This blog will cover the requirements of making valid contracts regarding wills.
It is not uncommon for heirs or beneficiaries to want to replace the personal representative (aka executor or administrator) appointed in a probate. Often this arises because of inter-family conflict. However, bad blood and feelings are not enough to have a personal representative removed.
Letters testamentary (aka "letters of administration" or "letters of representation") refers to the official document issued by the relevant probate court authorizing the administrator (“executor” if there is a will, or “personal representative” if no will), to take control of a deceased person's estate.
1) Actual Legal Knowledge
What kind of power of appointment should you include? Should you include provisions for an administrative trust, or a trust protector? What about a resulting common trust for your children? Which marital funding option should you use upon the death of the first spouse? How should you balance the desire for asset protection for the surviving spouse, with a step-up in basis for the trust assets? Should you name your trust as the beneficiary of your life insurance policy? These are questions that generally cannot (and should not) be answered by laypeople, but are integral to the trust drafting process.
What happens if more than one person is petitioning the probate court to become the personal representative of the decedent’s probate estate? Who does the judge pick?
If there is a will, and the will designates an executor (or executrix – the antiquated name for a female executor), then the named executor will likely be appointed, subject to the caveats below.
As of 2010, 13.1% of the population was over 65 (A Profile Of Older Americans: 2011). Baby Boomers will have all passed the age of 65 by 2030, which by some estimates means that one-fifth or 20% of the population will be over 65. Couple that with the fact that life expectancies are at an all-time high, America is looking at a new demographic make-up with a disproportionate (compared to historical numbers) amount of elderly citizens.
The primary function of probate is to transfer title of the decedent's property to the proper heirs and/or beneficiaries. If there is no property to transfer, there is generally no need for probate. And as discussed briefly below, some property may pass outside of probate.
When a decedent who is a resident of California, but has real property elsewhere, dies, two separate probates will need to be conducted: the primary probate, in California, and what’s called an “ancillary” probate in the state of wherever the other property is situated.
Heath Ledger died, unmarried, at the age of 28. At the time, he had a two-year old daughter, Matilda Rose, and a will. The will, drafted before Matilda’s birth, did not mention her. So she gets nothing, right? Not necessarily. While the heirs of Ledger’s estate (his sister and parents) ultimately came to a private settlement regarding Matilda’s share of his estimated $20 million estate, depending on what state (or country) laws would have been applied, Matilda may actually have been entitled to his entire estate.
What happens if a relative dies, and leaves outstanding mortgages or other debts? Which beneficiaries will see their inheritances reduced by payment of those debts?
The first thing to look at is the decedent’s will. If the will directs the executor to pay expenses or debts in a certain manner, those wishes should be followed.