Elderlaw Advocates Feb. 15, 2018
Dear Len & Rosie,
I am one of nine adult children. We have an 81-year-old very stubborn mother who owns her home free and clear, plus her personal possessions. She is a bit gun-shy about discussing her estate, and she has no will. Whenever we try to talk to her about getting a will or a living trust, she always says, ďDonít rush me into the grave.Ē Her only concern is that all nine of us get an equal share of the house after it is sold.
She says that she wants three of us named as executors of her estate. Frankly, this really worries me, because the three of us have very different personalities, and we are spread out all over the country. I really want to avoid future problems so we wonít have a big mess on our hands and wind up paying more in lawyer fees and taxes than we inherit. What can you suggest?
The good news is that even if your mother never signs a will or a trust, her wishes would ultimately be fulfilled through intestate succession, the law about who gets what when someone dies without a will. The rules of intestacy provide that the estate of a decedent with no surviving spouse is to be divided equally among the children, with the share of a predeceased child going to that childís living descendants.
Do not get us wrong. Your mother should have an estate plan. Without one, all sorts of problems can come up. There could be a fight over which child gets to be the administrator (executers are only for estates where there is a will; administrators are for intestate estates). Without a will, the administrator will have to buy a bond unless all nine children waive the bond requirement. Finally, without a will, thereís no way to prove how your mother wanted her personal possessions distributed. We have seen families fight tooth and nail over items such as a chaise lounge and a charm bracelet.
Your mother should definitely make a will, if only to appoint an executor to administer the estate and to say her executor can serve without bond. Also, if your mother has personal possessions of a particular sentimental value, she could use her will to decide who gets what when she dies.
She should also seriously consider creating a revocable living trust to avoid probate. Even if your motherís home isnít worth all that much, a trust is probably a good idea for her. Trusts are more expensive than wills, but a trust will more than make up for it in reduced legal fees and the time youíll save after your motherís death.
Itís usually not a good idea to name more than a couple of co-executors or co-trustees. Your motherís trust or estate could suffer from the ďtoo many cooks spoil the brothĒ problem. Itís best that your mother not name two or more children to serve together as trustees or executors unless the children have a track record of working well together.
Many people shy away from estate planning, for many different reasons. Sometimes it is difficult to confront your own mortality. However, an orderly estate plan is a blessing to those you leave behind, and would make a wonderful gift from your mother to her children.
Len & Rosie
Dear Len & Rosie,
My mother-in-law passed away recently. She added her daughter, my sister-in-law, to her bank account and mutual funds when she could no longer manage things on her own. After her death, my sister-in-law withdrew all of the money out of the accounts even though her mother had a will splitting her estate fifty-fifty with her children.
Please warn your readers about this happening to them. Our case is in court now, but we have to prove my mother-in-lawís intention that everything was be divided equally. Our case looks really weak, but at least I can spread the word. You never know what a sibling might do when a death occurs. Parents need to know to be very specific when making out their wills.
Experience has lead us to expect the worst from people when a parent or other relative whose estate they have an interest in dies. In most cases, children get along well with one another and are happy to cooperate to make things fair. But more often than we would like to acknowledge, otherwise normal, kind and caring people become greedy.
It is unfortunate that we cannot assume the good intentions of our children. The best way to make sure our assets are divided the way we want upon our deaths is to create an estate plan, either a revocable trust or a will, that clearly and concisely spells it out. Your mother-in-law did this, but she threw her estate plan out the window when she made the mistake of adding her daughter to her accounts as a joint tenant. Joint tenancy property does not pass through probate, no matter what the will says. Your husband has an uphill battle. To win he has to prove your mother put his sister on the accounts for convenience only.
How could this have been avoided? The easiest way would have been for your mother-in-law to have put both children on her accounts instead of just her daughter. Or, she could have added her daughter to her bank accounts using the bankís power-of-attorney forms. This would have allowed your sister-in-law to pay her motherís bills without becoming a joint owner of her motherís bank accounts. If your mother-in-law owned enough assets that avoiding probate was important to her, then she should have created a trust.
Adding children to your accounts as a joint tenant is a cheap and easy way to avoid probate. But in your case, it backfired. You can be sure that your lawyers will earn more money in this lawsuit than they would have earned in probate fees if the estate had been subject to probate. Itís a hard lesson to learn, Sharon, but maybe youíll get lucky and win in court. Good luck.
Len & Rosie