Make Your Own Plan to Pass Your Values

One of the biggest legal fallacies that I see clients hold is the belief that if they die, all of their assets go to a certain person automatically.  Most assume that if they are married, that their assets will go to their surviving spouse.  Absent a will or trust, however, that statement may not be true.

Property owned in joint tenancy will go to the other owner no matter who that owner is – whether it is a spouse, sibling, or child.  Many hold their homes and bank accounts in joint tenancy.  If you hold property like that, then you need to understand that the property becomes owned wholly by the surviving joint tenant upon your death.  Most commonly, I see older adults add one child as the joint tenant on a bank account in order to assist with the payment of bills.  When you do that, the bank account becomes owned by that child upon your passing – potentially bypassing your other children. Continue reading “Make Your Own Plan to Pass Your Values”

Executor Has Solemn Duty

When a probate case is filed with the court, the court appoints an executor to manage the probate.  When someone is appointed as an Executor – also known as a Personal Representative or Administrator– there are certain legal obligations and duties he or she must carry out.  In Douglas County, an Executor must actually sign a court-form acknowledging that they bear these duties before they can begin to act on behalf of the Estate.

Foundational to all of these duties is the fact that an Executor acts in a “fiduciary capacity.”  This means that the Executor must manage the assets of the Estate and treat all the beneficiaries and creditors of the estate fairly and equally.  The Executor is often a beneficiary of the Estate, and he or she cannot show preferential treatment to him or herself, nor to any one beneficiary or creditor.  These duties can be generally broken down into the following:

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Probate is Not a Four Letter Word

Sometimes I think “probate” is a four letter word.  Many people are more concerned about avoiding probate than avoiding the IRS.  Yet, many people do not understand what probate is.

Probate is the court-supervised process of transferring assets from one generation to the next.  Under strict laws and deadlines, a judge requires the executor to gather your assets, pay your creditors, file your last tax return, and then distribute the assets.  If you leave a Last Will and Testament, then the judge generally directs that the assets be divided as you instructed.  Think of a Last Will as legally-enforceable instructions to the judge about where you want your belongings to go.  If you do not leave a Last Will, then state law provides that your assets are to be distributed to your next-of-kin.

As a court process, there are fees and costs involved in a probate. There is a court filing fee (between $200 and $600 per statute). There may be attorney’s fees, and your executor is entitled to a percentage of the assets probated as compensation for all of his or her hard work.  As a rough estimate, approximately 5% to 10% of the value of the assets will be used to pay for court fees, costs, and compensation.

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Property Ownership Affects Us Every Day

I deal with a lot of property issues in my practice.  They come up in all sorts of matters from family law, to guardianships, to trust and business matters.  Issues of ownership are fundamental in our lives.  Just think about it: whether you lease your home, own it outright, or own it subject to a mortgage and whether you do so individually, or with another person, all affect your rights in the home.  The same is true for your cars, bank accounts, and the like.  These questions all affect us when we buy something, sign for a loan, insure an asset, or determine the best way to invest an asset for ourselves or our family.

There are several basic ways to own property. This article will to give you broad overview of those issues.

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