The law firm answer…..it depends. Did mom leave written signed instructions? If she did, her personal property will be distributed according to her wishes. But if she did not let her wishes be known in a comprehensive estate plan, there could be dissention among the heirs.
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The answer is NO. When a person dies leaving a Will and/or Trust, the nominated Personal Representative or Successor Trustee is not obligated to use the attorney who prepared the documents to administer the estate and/or trust.
Probate is often thought of as a process that is best avoided. There certainly are situations in which probate is not necessary, but it is surprising for some to learn there are benefits which can only be gained by engaging in the probate process. In most cases, probate is an easy and straightforward process. Unfortunately, it seems the probates that get discussed are not the ones that go smoothly, but rather the situations in which something unexpected occurs. It is best to understand the process before automatically assuming probate should be avoided.
The scenario: Hank and Janice were married, had a daughter together, Elsie, and then got divorced. Hank died intestate, without a will, so pursuant to Florida law, Elsie was the beneficiary of his estate. Elsie was not married and had no children. She died before receiving her distribution from Hank’s estate. What happens to her distribution? It will now go to the beneficiary of Elsie’s estate. Having died with no spouse or children, Elsie’s beneficiary is her mother, Janice. So Janice has now become the beneficiary of her ex-husband’s estate. Do you think this is what Hank would have wanted?
The take-away from this scenario: With proper planning, this could have been avoided.
Bob and Kate are an unmarried couple, neither of whom have children, and who live together in a home owned by Bob, individually. Let’s say Bob dies. The good news is he has a signed will. The bad news is he prepared the will himself, without consulting an attorney. The will leaves his home to Kate, who intends to continue living there just as she has for many years. (more…)
Michael and David are a same sex couple who live in the same house, owned by Michael. Michael prepares a will leaving everything he owns to David. Michael is still married to Evelyn who lives in Iowa with their minor child. For various reasons, they never divorced and don’t necessarily intend to do so. Michael dies. Does David get everything owned by Michael? No. In Florida, you cannot disinherit your spouse. Evelyn is entitled to an elective share of Michael’s estate equaling thirty percent (30%) of his assets. This includes assets he may have owned jointly with David. Additionally, as he was survived by a minor child, Michael cannot devise his homestead property to anyone other than his minor child.
This is one example of good intentions gone bad for an unmarried couple, whether same sex or traditional. For this and many reasons, proper estate planning with a qualified attorney is important if you want your wishes carried out as you intend.
When someone dies the Last Will & Testament becomes the controlling instrument. Typically, your Last Will & Testament will nominate a personal representative responsible for the administration of your estate including accounting for all of your assets, paying your creditors and distributing your estate to your named beneficiaries. Many times a spouse or adult child is
Let’s say there is a “traditional” scenario where the husband, Jim, works outside of the home and his wife, Annie, takes care of the children and the home. In this “traditional” scenario, Jim feels it is his responsibility to provide for his family and, as part of that, to take care of all the finances. He manages the bank accounts, the rental properties, the LLC that owns the rental properties, the investments, paying the bills, etc. Jim is happy to relieve Annie of this responsibility and she is happy not deal with it. But, what happens if Jim dies first?
Bob and Suzy get divorced. Suzy has an adult child, Annie, from a prior relationship. As part of the marital settlement agreement, Bob is supposed to sign a deed conveying his interest in their homestead to Suzy. Suzy is supposed to get a new home loan in her individual name.
Does your family know where your most up to date estate planning documents are located? If you signed a will in 1985 and put it in your safe deposit box, signed a new will in 2001 and put it in your desk at home, told your son about one, told your daughter about the other, they may be confused. The attorney information on each document is different. Then they find something containing information for a third attorney. At a time when they are grieving, they are now on a scavenger hunt for your most up to date estate planning documents. (more…)