Kenwood Press


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Elderlaw: 11/15/2011

Elderlaw Advocates



Dear Readers,

We would like to share with you something that we share with our clients. Itís really important, our clients like it, and we think that your family can benefit from it as well. You may have seen this before. We print it year after year. Consider it as a gentle reminder to get yourself organized. One of the most tedious tasks in administering a trust or an estate is finding the decedentís estate planning documents and asset information. Frequently, children or even spouses have no idea where their parents or spouse kept these important documents.

After you pass away, the last thing you should want is for your loved ones to have to search through your belongings in a morbid scavenger hunt to find your will, trust, stock certificates, or other important papers. They shouldnít have to lift up your mattress to look for your safe deposit box key or spend $150 at the bank drilling into your safe deposit box because they couldnít find it. They shouldnít have to waste a month waiting for new account statements to come in the mail so they can learn where you invested your savings.

To avoid these difficulties, you should organize your personal and financial data. This is where the list comes in. Collect the information described in this list and give a copy to your children or close relatives, or keep it somewhere safe and let your family know where to find it. In case something happens to you, the List of Eleven is one of the best ways to ensure that your relatives can find all your vital records.

The List of Eleven

1. The name of the bank where you have your safe deposit box, its number, and the location of your key.

2. The account numbers for all of your insurance policies, health, life, auto, home, burial, etc., and the names, addresses, and telephone numbers of your insurance agents.

3. A list of your stocks, bonds, mutual funds, and the name and address of your broker.

4. The names of the banks or savings and loans for each of your accounts, and the account numbers, or even copies of account statements.

5. The location of your cemetery plot or mausoleum niche.

6. The location of your will or trust and the name, address and phone number of your attorney.

7. Your credit card numbers.

8. Your Social Security Number.

9. The name and address of your mortgage holder, the account number, and the amount of the outstanding debt.

10. The name and address of your accountant, and where your past income tax returns are located.

11. The type of memorial or funeral service you want.

If you think this is too hard to do yourself, consider how hard it will be for your children to deal with after you pass away. Take a few minutes to get organized.



Dear Len & Rosie,

My father recently passed away without a will. As far as I understand, my mother and he never finalized their divorce because the settlement agreement had not been filed, even though they filed for divorce in 1989.

My fatherís wishes were that my mother would receive half of the home and my brother, sister and I were to share the remaining half interest. My mother has now retained a probate attorney and we are not sure what her intentions are.

In addition, my paternal grandmother willed some property to us three children and my mother is now trying to claim that property even though my grandmother specifically stated in her will that my mother was to be excluded and if she contested the will, she was to receive $1. Do you recommend that I retain my own probate attorney?

Janene



Dear Janene,

There are two separate cases here: Your fatherís estate and your grandmotherís estate. With respect to your father, you have problems. If the divorce had been finalized then your mother would have been automatically disinherited from your fatherís will, if he had one, and would not inherit any portion of the estate by intestate succession, if he had no will.

But since your parents were not divorced upon your fatherís death, your mother is still the surviving spouse. The fact that they have been separated for two decades doesnít change this. She gets to inherit whatever your father left her in his will. If he died intestate (without a will), your mother shall inherit all of your fatherís community property and one-third of his separate property, because he was survived by more than one child.

As for your grandmotherís estate, your rights depend on the exact terms of your grandmotherís will, which we have not had the opportunity to review. If your grandmother left everything to your father, and then died before him, thereís a good chance that all or a portion of your grandmotherís estate shall pass into your fatherís estate to be distributed to your mother in addition to your fatherís children. But if your grandmotherís will left you something specifically, rather than you inheriting through your father, your fatherís death and your motherís claims should not affect your own inheritance.

You should probably sit down with a trusts and estates attorney and review the estates of both your father and grandmother because the particular facts in your situation are important and will affect your rights. But you should know that itís your fatherís own fault that his wife may inherit so much. His wishes wonít count unless they were incorporated into an estate plan that he didnít get around to creating while he had 20 years to complete. Donít blame your mother for your fatherís inaction.

Len & Rosie



Dear Len & Rosie,

My grandmother died almost a year ago and willed each of her grandchildren and great grandchildren $500. My aunt and uncle were on the title of the house along with my grandmother. They were also named executors of the estate. All the grandkids are wanting their inheritance and are being told that there is no money. The house was just rented this month and will be bringing in monthly income.

Darla



Dear Darla,

Whether or not youíre ever going to see your modest inheritance depends not only on the terms of your grandmotherís will, but also whether or not she actually owned anything subject to probate. Your grandmother created an estate plan, but thereís a good chance she didnít really understand how it worked.

Your grandmotherís home, held in joint tenancy with her children, was not subject to probate, and was not subject to the terms of her will. When a joint tenant dies, the surviving joint tenants own the property automatically. All your aunt and uncle had to do to clear title was to submit your grandmotherís death certificate with an affidavit of death of joint tenant to the county recorder, together with the property tax paperwork needed to avoid a reassessment under Propositions 13 and 58.

What your grandmother did by adding your aunt and uncle to her deed was to save thousands of dollars in probate attorney fees, as well as the delays of probate. But she did this at the cost of removing her home from her estate plan. The only assets that can be used to fulfill the $500 gifts your grandmother wanted to make are assets that were titled solely in her name upon her death. Assets in a trust, joint tenancy assets, and assets with pay-on-death beneficiaries are not disposed of by your grandmotherís will.

Chances are, she didnít have all that much besides her home. If she had more than $100,000 in her name alone, then her will would have to be probated, and you would have received a notice of the petition to admit the will to probate. If she had less than $100,000 in accounts solely in her name, then these accounts could have been collected using small estate declarations under Probate Code section 13101, but these declarations should have been signed by all of the recipients of your grandmotherís will, yourself included.

If there is money out there, you could sue your aunt and uncle if you can prove that they took the estateís money for themselves and didnít use it all to pay off your grandmotherís debts. But itís only $500, and if her bank accounts were also in joint tenancy thereís nothing to fight over except for the furniture. Consider this as a lesson.

Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 996-4505, or on the Internet at www.lentillem.com. Len also answers legal questions each weekday, Noon-1 p.m., and Sundays, 4-7 p.m., on KGO Radio 810 AM.


Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at www.lentillem.com. Len also answers legal questions each weekday, Noon-1 p.m. and Sundays, 4-7 p.m. on KGO Radio 810 AM.
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