Can I Get My Co-Executor Sister to Abide by Father’s Will?

When both children are beneficiaries and both are co-executors, it should be a simple result. Sell the house and split the proceeds as the father instructed. However, if one child feels this to be unfair, it can cause issues, especially when no one lives in the house, no one wants to and it just costs the heirs money each month.

Nj.com’s recent article entitled “I’m fighting with my sibling about an inheritance. What can I do?” says that this is an example of the estate planning issue of treating heirs equally rather than equitably.

An executor cannot to act in his or her own personal interest. Instead, the executor must act in the best interest of the estate. They have what’s called a “fiduciary duty.” Thus, as co-executors, the two children in this example owe a fiduciary duty to implement the terms laid out in their father’s will, unless the will is successfully contested.

When real estate is left to named heirs, the executor can either sell the property and divide the proceeds as specified in the will, or distribute the house “in kind,” which means that the beneficiaries would become co-owners. If the beneficiaries don’t want to be co-owners, the best solution is to sell the property.

While neither child wants to keep the home, it’s also possible for one of them to buy out the other’s share based on a fair market value of the house. If they can’t resolve the dispute amicably, the courts will need to be involved.

The dissatisfied child could file a lawsuit contesting the will. If deadline to do this has passed, the will should stand. Even if the child does contest the will within the required time period, it will be hard for her to succeed. The two most common grounds to contest a will are to show that the testator wasn’t competent to sign it, or to show that somebody exerted undue influence over the testator.

If dissatisfied child doesn’t contest the will — or if she does contest it but fails — she’s legally obligated to put aside her personal desires and comply with her fiduciary duty to implement the will.

If she refuses to do so, the other child can ask the court for help resolving the matter. This would involve filing a complaint seeking to remove the dissatisfied child as co-executor and name the other as the sole executor.

He would ask the court to enter an order, called an “order to show cause.” This order states deadlines for the dissatisfied child to defend her conduct and oppose the relief requested.

While you’re not required to have an attorney for this process, it will be difficult to navigate the process without one. Work with an experienced estate planning attorney.

Reference: nj.com (Aug. 9, 2022) “I’m fighting with my sibling about an inheritance. What can I do?”

 

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What Should I Know about Burial Insurance ?

Burial insurance—also called end-of-life insurance, final expense, or funeral insurance—is a whole life insurance policy that’s designed to pay for the costs of your burial. These costs may include a memorial service, cremation costs, a headstone for your grave or other expenses associated with end-of-life arrangements.

Bankrate’s recent article entitled “Burial insurance” explains that if you have your affairs in order, your family already knows what will happen when you die. You may have given instructions for how you’d like your body to be treated, as well as ideas for your memorial service or what you want written on a tombstone.

However, all of these things cost money. If you don’t want your family to be stuck paying those costs, you may want to consider a burial policy.

Because the payout for this insurance is small compared to many regular life insurance policies, the premiums can also be quite affordable. The policies are easy to purchase and don’t require a medical exam. However, there may be a waiting period and the policy may offer only limited benefits in the first two years.

Burial insurance policies cover all the normal costs incurred by someone’s death, such as:

  • Embalming
  • A casket
  • Flowers
  • Cremation costs
  • A burial plot
  • The cost of transporting the body and/or remains
  • A headstone; and
  • Payment to clergy.

One type of burial policy, called a guaranteed issue life insurance policy, is available without any medical or health questions. It’s designed for those who are seriously ill and can’t get a policy any other way.

If all the appropriate arrangements have been made, the process of filing a burial insurance claim should be fairly smooth.

Reference: Bankrate (March 5, 2021) “Burial insurance”

 

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Did Actor Ray Liotta Have an Estate Plan?

Movie and TV fans were shocked to hear the news of Ray Liotta’s death on May 26.

The “Goodfellas” star was just 67 when he died. Deadline reported that he was on location in the Dominican Republic working on a new movie, when he was found to have died in his sleep.

MSN’s recent article entitled “How Much Was Ray Liotta Worth When He Died” reports that Liotta got his big break with his leading role in “Goodfellas” in 1990. He was also known for his work on “Field of Dreams,” and his Emmy-winning guest appearance in “ER.”

In the years and months preceding his death, Liotta was still hard at work, having scored roles in the Academy Award-winning “Marriage Story,” and more recently, “The Many Saints of Newark.”

In addition to a prolific career, the actor also leaves behind a loving family. His daughter Karsen Liotta’s fledgling acting career was no doubt a source of pride to her father as she follows in his footsteps, according to Vanity Fair.

At the time of his death, Liotta was also engaged to be married to Jacy Nittolo.

Thanks to his long successful career, and recent big-name projects, Liotta left his loved ones with a substantial fortune in his estate.

At the time of his death, Ray Liotta was worth an estimated $14 million. He worked steadily from his early 20s, when he decided to pursue a career in the arts until his death.

In addition to his film and television roles, the actor also earned a sizeable income from his commercial work. In 2019, Liotta became the spokesperson for the anti-smoking drug Chantix, for which he filmed a number of ads.

That he’d die with $14 million in the bank, must have seemed inconceivable to a young Liotta. The Emmy winner was adopted into an Italian-American family at six months old and spent his childhood in suburban New Jersey.

“To be honest with you, I thought I’d be in construction,” he told one newspaper in 2021.

In addition to his large net worth, Ray Liotta likely also left behind some expensive real estate. Though the value of his most recently acquired properties is unknown, in 2007 he sold his Pacific Palisades house to Britney Spears for a reported $8 million.

Reference: MSN (May 26, 2022) “How Much Was Ray Liotta Worth When He Died”

 

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What Should I Know About Buying Funeral Services?

People usually don’t buy funeral services frequently, so they’re unfamiliar with the process. Add to this the fact that they’re typically bereaved and stressed, which can affect decision-making, explains Joshua Slocum, executive director of the Funeral Consumers Alliance, an advocacy group. In addition, people tend to associate their love for the dead person with the amount of money they spend on the funeral, says The Seattle Times’ recent article entitled “When shopping for funeral services, be wary.”

“Grieving people really are the perfect customer to upsell,” Slocum said.

The digital age has also made it easier to contact grieving customers. Federal authorities recently charged the operator of two online cremation brokerages of fraud. The operator misled clients and even withheld remains to force bereaved families to pay inflated prices.

The Justice Department, on behalf of the Federal Trade Commission, sued Funeral & Cremation Group of North America and Legacy Cremation Services, which operates under several names and the companies’ principal, Anthony Joseph Damiano. The companies, according to a civil complaint, sell their funeral services through the websites Legacy Cremation Services and Heritage Cremation Provider.

These companies pretend to be local funeral homes offering low-cost cremation services. Their websites use search engines that make it look like consumers are dealing with a nearby business. However, they really act as middlemen, offering services and setting prices with customers, then arranging with unaffiliated funeral homes to perform cremations.

The lawsuit complaint says these companies offered lower prices for cremation services than they ultimately required customers to pay and arranged services at locations that were farther than advertised, forcing customers to travel long distances for viewings and to obtain remains.

“In some instances when consumers contest defendants’ charges,” the complaint said, the companies “threaten not to return or actually refuse to return” remains until customers pay up.

Mr. Slocum of the Funeral Consumers Alliance recommends contacting several providers — in advance, if possible, so you can look at the options without pressure. And ask for the location of the cremation center and request a visit. Also note that cremation sites in the U.S. are frequently not located in the same place as the funeral home and may not be designed for consumer tours.

Note that the FTC’s Funeral Rule predates the internet and doesn’t require online price disclosure. Likewise, most states don’t require this either.

Last year during the pandemic, the government issued a warning about fraud related to the funeral benefits. They said FEMA had reports of people receiving calls from strangers offering to help them “register” for benefits.

Reference: Seattle Times (May 15, 2022) “When shopping for funeral services, be wary”

 

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What Sparks a Will Contest ?

Will Contest – A last will and testament is the document used to direct your executor to distribute assets and property according to your wishes. However, it’s not uncommon for disgruntled or distant family members or others to dispute the validity of the will. A recent article titled “5 Reasons A Law Will May Be Contested” from Vents Magazine explains the top five factors to keep in mind when preparing your will.

Undue influence is a commonly invoked reason for a challenge. If a potential beneficiary can prove the person making the will (the testator) was influenced by another person to make decisions they would not have otherwise made, a will challenge could be brought to court. Undue influence means the testator’s decision was significantly affected by a person who stood to gain something by the outcome of the will and made a concerted effort to change the testator’s mind.

Even if there was no evidence of fraud, any suspicion of the testator’s being influenced is enough for a court to accept a case. If you think someone unduly influenced a loved one, especially if they suffer from any mental frailties or dementia, you may have cause to bring a case.

Outright fraud or forgery is another reason for the will to be contested. If there have been many erasures or signature styles appear different from one document to another, there may have been fraud. An estate planning attorney should examine documents to evaluate whether there is enough cause for suspicion to challenge the will.

Improper witnesses. The testator is required to sign the will with witnesses present. In some states, only one witness is required. In most states, two witnesses must be present to sign the will in front of the testator. A beneficiary may not be a witness to the signing of the will. Some states have changed laws to allow for remote signings in response to COVID. If the rules have not been followed, the will may be invalid.

Mistaken identity seems farfetched. However, it is a common occurrence, especially when someone has a common name or more than one person in the family has the same name, and the document has not been properly signed or witnessed. This could create confusion and make the document vulnerable to a challenge. An experienced estate planning attorney will know how to prepare documents to withstand any challenges.

Capacity in the law means someone is able to understand the concept of a will and contents of the document they are signing, along with the identities of the people to whom they are leaving their assets. The person doesn’t need to have perfect mental health, so people with mild cognitive impairments, such as depression or anxiety, may make and sign a will. A medical opinion may be needed, if there might be any doubt as to whether a person had testamentary capacity when the will is signed.

A will contest can be time-consuming and expensive, so keep these issues in mind, especially if the family includes some litigious individuals.

Reference: Vents Magazine (May 6, 2022) “5 Reasons A Law Will May Be Contested”

 

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Intestacy – Will My Family Hate Me If I Die without a Will?

Intestacy – Without a valid and legal will, it can open the door to family fighting or significant court costs to settle an estate.

The Seattle Times’s recent article entitled “Do you have a will? Without an estate plan, families can struggle to sort it out” advises you to put your wishes in writing, so your estate is handled responsibly at the end of your life.

It’s the best thing that you can do to help your family and help eliminate fighting in the future.

A will can help with the most routine aspects of settling someone’s affairs or provide additional protection for more rare events.

If a person dies without a will, it is called intestacy. When this occurs, the deceased’s estate is handed over to the local probate court to identify creditors, beneficiaries and allocate assets.

Property typically goes to a surviving spouse first, then to any children, then to extended family and descendants, following the state’s probate laws. If no family can be found, property typically reverts to the state.

You can also ask an experienced estate planning attorney about a living trust.

A trust is a legal document that can set out plans for someone while they’re still alive and after death, including instructions for how to divide up all assets, including property, businesses and investments.

While most of the instructions should be covered in the living trust, writing a will can also serve as a back-up document to lay out how property and other assets should be transferred. In addition, wills used in conjunction with a living trust commonly designate that trust as the beneficiary of the will. Hence, such wills are referred to as pour-over wills.

A will that’s entirely in someone’s own handwriting — not anyone else’s — that’s signed and dated may be valid, depending on your state of residence. However, it can be disputed in court if there are questions about its authenticity. People who handwrite their wills risk leaving out or forgetting heirs or assets they want to identify, if it’s not checked over by a professional.

Reference: Seattle Times (May 16, 2022) “Do you have a will? Without an estate plan, families can struggle to sort it out”

 

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What about Personal Property when Someone Dies?

Probate law does not allow anyone to take personal property from a loved ones’ home after they die, until the will has been probated. Learning about probate, what it entails and how to prepare for it may make it a little easier when a family member dies, says a recent article titled “Can you empty a house before probate? from Augusta Free Press. Knowing what to expect can avoid common pitfalls and mistakes, some of which often lead to family fights and even litigation.

Probate is a court-supervised period when the estate of the decedent is on pause. Assets may not be distributed, including personal items in the home. The goal is to ensure that assets are distributed only after the will has been ruled valid by the court and following the instructions in the will.

Probate includes the legal appointment of the executor, who is named in the will with specific statutory responsibilities, to include ultimately distributing assets.

For many people, estate planning includes preparing assets to avoid the probate process. An estate plan includes a review of the entire estate to see which assets are best suited to be taken out of the estate. Living trusts, joint ownership, transfer-on-death (TOD) and many other estate planning strategies can be used, depending on the person’s finances.

Certain tasks can be accomplished during probate relating to the home and other personal property. This includes changing the locks on the home to protect it from criminals and unauthorized people who have keys. The decedent’s mail can be forwarded to the executor or another family member’s address. A review of the decedent’s bills, especially monthly payments, can take place. If there’s a mortgage on the home, the mortgage company needs to be contacted and the payments need to be made.

As the end of the probate period nears, it may be time to contact an appraiser to get an unbiased, professional appraisal of the home’s value. This will be needed if the home is to be sold, or if the estate plan needs a valuation of the home.

Probate is often a necessary process. It can create challenges for the family, especially if no estate planning has been done. In some jurisdictions, probate is quick and painless, while in others it is a long and expensive process. Prior planning by an experienced estate planning attorney prevents many of the issues presented by probate.

After probate has been completed, the executor distributes the assets, including the personal property in the home. Personal property with sentimental value often sparks more family fights than assets of greater value. Administering an estate when emotions are running high is a challenge for all concerned.

Another reason to have an estate plan in place is to delineate very specifically what you want to occur after your death. That way there is no room for family members to stake a claim and do something contrary to your wishes.

Reference: Augusta Free Press (May 13, 2022) “Can you empty a house before probate?

 

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How Do I Conduct an Estate Inventory?

Estate Inventory – When a loved one dies, it may be necessary for their estate to go through probate—a court-supervised process in which his or her estate is settled, outstanding debts are paid and assets are distributed to the deceased person’s heirs. An executor is tasked with overseeing the probate process. An important task for an executor is submitting a detailed inventory of the estate to the probate court.

Yahoo Finance’s recent article entitled “What Is Included in an Estate Inventory?” looks at the estate inventory. During probate, the executor is charged with several duties, including collecting assets, estimating the fair market value of all assets in the estate, ascertaining the ownership status of each asset and liquidating assets to pay off outstanding debts, if needed. The probate court will need to see an inventory of the estate’s assets before distributing those assets to the deceased’s heirs.

An estate inventory includes all the assets of an estate belonging to the individual who’s passed away. It can also include a listing of the person’s liabilities or debts. In terms of assets, this would include:

  • Bank accounts, checking accounts, savings accounts, money market accounts and CDs
  • Investment accounts
  • Business interests
  • Real estate
  • Pension plans and workplace retirement accounts, such as 401(k)s, 403(b)s and 457 plans
  • Life insurance, disability insurance, annuities and long-term care insurance
  • Intellectual property, such as copyrights, trademarks and patents
  • Household items
  • Personal effects; and

Here’s what’s included in an estate inventory on the liabilities side:

  • Home mortgages;
  • Outstanding business loans, personal loans and private student loans;
  • Auto loans associated with a vehicle included on the asset side of the inventory
  • Credit cards and open lines of credit
  • Any unpaid medical bills
  • Unpaid taxes; and
  • Any other outstanding debts, including unpaid court judgments.

There is usually no asset or liability that’s too small to be included in the estate inventory.

Reference: Yahoo Finance (Feb. 15, 2022) “What Is Included in an Estate Inventory?”

 

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My Children Really Don’t Want My Stuff?

Next Avenue’s recent article entitled “Your Top 10 Objects Your Kids Don’t Want” gives us a list of these items and what to do with them.

Books. Unless your grown children are professors, they don’t want your books. If you think the book is rare, call a book antiquarian.

Paper Ephemera. Snapshots, old greeting cards and postcards are called paper ephemera. Did you know that? Me neither. Old photos are not worth anything, unless the subject is a celebrity or linked with an important historical event. Old greeting cards are not valuable, unless handmade by a famous artist or sent by a celebrity. Postcards are valued mainly for the stamps. Take all your family snapshots and have them made into digital files. The other option is to sell those old snapshots to greeting card publishers who use them on funny cards or give family photos to image archive businesses, like Getty. If the archive is a not-for-profit, take the donation write-off.

Steamer Trunks, Sewing Machines and Film Projectors. Thrift stores are full of these items. Therefore, unless your family member was a professional and the item is top-notch, yours can go there as well.

Porcelain Figurine Collections and Bradford Exchange Pieces. Your collections of frogs, shoes, flowers, and trolls, as well your Hummel’s, and Precious Moments won’t be wanted by the children. See if you can find a retirement home that does a gift exchange at Christmas and donate the figurines. If you want to hold on to a memory of your mom’s collection, have a professional photographer take a photo for your wall. Collector’s plates won’t sell. Donate these as well.

Silver-Plated Stuff. Your children won’t polish silverplate, so if you give them platters, serving bowls, tea services and candelabra, you won’t enhance your standing. The exception may be silver-plated items from Tiffany or Cartier but give these away to any place or person who will take it.

Heavy, Dark, Antique Furniture. There’s still a market for this sort of furniture at secondhand shops. However, you’ll get less than a quarter of purchase price, if you sell on consignment. Unless your furniture is mid-century modern, there’s a good chance you will have to pay someone to take it off your hands. Instead, donate it and take a non-cash charitable contribution using fair market valuation.

Persian Rugs. No, these aren’t really in vogue for younger adults. However, the high-end market is still collecting in certain parts of the country, like Martha’s Vineyard. However, unless the rug is rare, it’s one of the hardest things to sell these days. If you think the value of the rug is below $2,000, it will be a hard sell. Like antique furniture, it may be best to donate these.

Linens. No, they don’t want them. They might not even own an iron or ironing board, and they definitely don’t set that kind of table. Give these to needlewomen who make handmade Christening clothes, wedding dresses and quinceañera gowns. You may also donate linens to costume shops of theaters and deduct the donation. A site like P4a.com has auction results to establish the fair market value of such objects.

Sterling Silver Flatware and Crystal Wine Services. Matching sets of sterling flatware are tough to sell because they rarely go for “antique” value. Do the children do a lot of formal entertaining? The same is true for crystal. These sets are too precious, and the wine they hold is too small a portion. Sites like Replacements.com offer matching services for people who do enjoy silver flatware and have recognized patterns. Because they sell per piece, and therefore buy per piece, sellers get a rather good price.

Fine Porcelain Dinnerware. Your grown children may not want to store four sets of fancy porcelain dinnerware and won’t see the benefit of unpacking it once a year for a holiday or event. China is something to consider selling. Know your pattern to get a quote. Some replacement companies buy per piece, so the aggregate of the selling price is always more than a bulk sale at a consignment store, which might be the only other option.

Reference: Next Avenue (March 1, 2018) “Your Top 10 Objects Your Kids Don’t Want”

 

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What are non-probate Assets ?

In many families, more assets pass outside the Last Will than through the Last Will. Think about non-probate assets: life insurance proceeds, investment accounts, jointly titled real estate assets, assuming they were titled as joint tenants with right of survivorship, and the like. These often add up to considerable sums, often more than the probate estate.

This is why a recent article from The Mercury titled “Planning Ahead: Pay attention to your non-probate assets” strongly urges readers to pay close attention to accounts transferred by beneficiary.

Most retirement accounts like IRAs, 401(k)s, 403(b)s and others pass by beneficiary designation and not through the Last Will. Banks and investment accounts designated as Payable on Death (POD) or Transfer on Death (TOD) also do not pass through probate, but to the other person named on the account. Any property owned by a trust does not go through probate, one of the reasons it is placed in the trust.

Why is it important to know whether assets pass through probate or by beneficiary designation? Here’s an example. A man was promised half of this father’s estate. His dad had remarried, and the son didn’t know what estate plans had been made, if any, with the new spouse. When the father passed, the man received a single check for several thousand dollars. He knew his father’s estate was worth considerably more.

What is most likely to have happened is simple. The father probably retitled the house with his new spouse as tenants by the entireties–making it a non-probate asset. He probably retitled bank accounts with his new spouse. And if the father had a new Last Will created, he likely gave 50% to the son and 50% to the new spouse. The father’s car may have been the only asset not jointly owned with his new spouse.

A parent can also accidently disinherit an heir, if all of their non-probate assets are in one child’s name and no provision for the non-probate assets has been made for any other children. An estate planning attorney can work with the parents to find a way to make inheritances equal, if the intention is for all of the children to receive an equal share. One way to accomplish this would be to give the other children a larger share of probated assets.

Any division of inheritance should bear in mind the tax liability of assets. Non-probate does not always mean non-taxed. Depending upon the state of residence for the decedent and the heirs, there may be estate or inheritance tax on the assets.

Placing assets in an irrevocable trust is a commonly used estate planning method to ensure inheritances are received by the intended parties. The trust allows you to give very specific instructions about who gets what. Assets in the trust are outside of the probate estate, since the trust is not owned by the grantor.

Your estate planning attorney will be able to review probate and non-probate assets to determine the best way to achieve your wishes for your distribution of assets.

Reference: The Mercury (April 12, 2022) “Planning Ahead: Pay attention to your non-probate assets”

 

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