Estate planning Category
Dear Liz: I was concerned about something you wrote recently about the responsibilities of an executor — that he or she can be held personally responsible for settling an estate. I am listed as executor of my mother’s estate. She lives with my sister, has no assets other than a car she owes money on and an $11,000 credit card debt. Would I have to pay this balance if she dies owing it?
Answer: You misunderstood. An executor can be held personally responsible for mistakes made in settling an estate. But if you follow the procedures laid out by your state’s probate court, you shouldn’t have a problem.
When your mother dies, you’ll be required to make an inventory of her assets (the car) and her debts (the car loan and the credit card balance). Any assets must first be used to pay her creditors, with the order determined by state law. If her car loan is worth less than her car, for example, the car typically would be sold, the car loan paid off and any remaining equity used first to pay the costs of settling her estate and her funeral expenses. If there’s money left over, it would be used to pay as much as possible of the credit card balance (assuming there are no other debts that would take priority, such as federal or state tax debt).
If there isn’t any money left to pay creditors, on the other hand, you simply inform them of that fact and they have to write off the balance as bad debt. You aren’t personally responsible for paying your mother’s debts, unless you cosigned on a loan or are a joint account holder on a credit card.
Where you might run into trouble is if you ignore your state’s laws, sell the car and pocket the difference or distribute it to other heirs. You also run into trouble by paying one creditor ahead of another in violation of state law. Because you can be held personally responsible for mistakes made in settling the estate, it would be smart to get an attorney’s help.
Dear Liz: My oldest sister died recently. She owed a fair amount of credit card debt. She willed her condominium and the rest of her estate to my brother. Must my brother pay my sister’s debts from what he receives after he sells the condo, or are those debts considered closed?
Answer: Creditors typically must be paid before the remainder of an estate can be distributed to any heirs. That’s true even if specific items or dollar amounts are willed to specific people — they get what’s left only after the creditors get their share. If there isn’t enough money in the estate to pay the creditors in full, the executor of the estate is responsible for arranging settlements and the heirs typically get nothing.
Since it sounds as if your brother is also the executor, he would be wise to consult an attorney at this point. Executors can be held personally responsible — and sued — for any mistakes made in settling an estate.
Dear Liz: My father recently died and did not have a will or living trust. He has a joint mortgage with my mother and two car loans under his name only. Can we just keep paying all the loans even though he is no longer around? And if we do, when the debts are paid, who gets ownership? Lastly, should we call all of his creditors and let them know he has died? Please help, we are in dire need of advice.
Answer: Every state has rules that determine who gets what if someone dies intestate — without a will or trust. The court process where this is sorted out is called probate, and the surviving spouse is typically the executor or person responsible for settling debts and distributing assets. Mortgages and car loans stay with the property that secures them, which means whoever inherits the asset inherits the debt, according to attorney Mary Randolph, author of “The Executor’s Guide.”
If your dad’s estate was small — less than $500,000 — you or your mother may be able to handle the probate process with the help of an accountant. If his estate was larger or you feel you need more help, contact a probate attorney, who can help you get the process started and advise you about your state’s laws. And yes, your mom will need to notify creditors as well as any sources of income your dad may have had, such as employers, Social Security or a pension.
Dear Liz: Though there seems to be an unlimited number of books and seminars concerned with establishing a family revocable trust or living trust, there also seems to be a shortage of information on the steps a person would take to settle and distribute the proceeds of the trust when the last trust creator dies. Lawyers seem reluctant to reveal the legal steps required. Are you aware of a good publication with a minimum of legalese?
Answer: The book you’re looking for is “The Executor’s Guide” by attorney Mary Randolph from self-help legal publisher Nolo. The book, currently in its fourth edition, outlines the duties of someone who settles an estate or trust, offering a week-by-week and step-by-step guide. You’ll find the book in regular bookstores, online bookstores and at Nolo’s site, at http://www.nolo.com, both in physical form and as an e-book.
The job can be complex and you could be liable for any mistakes, which is why many people choose a lawyer’s help. Such help is all but a necessity if you’re dealing with a large estate (more than $1 million) or with contentious relatives. Even then, “The Executor’s Guide” can give you a clearer idea of what’s involved.
Dear Liz: Good news! I wrote to you recently about being unable to find my elderly father’s signed living trust. However, just by luck (or maybe it was prayers to St. Anthony), the original copy of the trust has turned up! So that’s one problem solved. Now I hope you’ll tell people how important it is to sure your parents have filled out durable powers of attorney for finances and for health care. We had a health care power of attorney for him, but my dad never filled out the other kind, which has made it extremely difficult to handle his finances now that he’s had a stroke and is in a nursing home. Our only option may be to get a court to appoint a conservator of his estate but it sounds like that would be complicated, costly, and probably take a long time.
Answer: Every adult who cares about his or her family should have durable powers of attorney for health care and for finances. As you’ve discovered, the lack of these documents can cause huge problems, forcing families to go to court to get authority to make decisions.
Many people assume incorrectly that their spouses can just take over. In reality, without a durable power of attorney a spouse may not have the legal authority to transactions involving real estate, investments and other assets, even if they’re jointly held. If the spouse is also incapacitated or dies first, getting anything done—down to paying the light bill—can become impossible.
Your father’s living trust may have language that allows the successor trustee (the person who would manage his assets after his death) to make decisions regarding the assets in case of your father’s incapacity. But he still needed a durable power of attorney for finances so that someone else had legal authority to make decisions about assets held outside the trust and to pay bills.
Dear Liz: My 82-year-old father, who is in a nursing home in California after multiple strokes, had always told me that he set up a revocable living trust for himself and my mom. I’ve been going through his papers and can find only unsigned copies of his trust.
My dad now suffers from some dementia, and my mom knows nothing about where he might have put a copy of the trust. I do not think a lawyer was involved.
I am worried about what will happen when my dad dies. Are revocable living trusts recorded somewhere? If so, how do I find his? Can my mom set up a new trust? They don’t have a lot of assets — just a house and car — so am I worrying needlessly?
Answer: Your dad can’t sign the copies or have a new trust created if he’s not mentally competent — and with the strokes and the dementia, he’s probably not, although you’ll probably want to consult a lawyer. Without a durable power of attorney, no one else can have estate documents created for him, either.
You can check with the county assessor to see if their home was transferred into the trust and with his bank to see if accounts are in the name of the trust.
But living trusts aren’t recorded anywhere. If you can’t find a copy of it and if assets, such as the house, weren’t transferred into the name of the trust, you can’t use the unsigned copies to avoid probate, said Burton Mitchell, a Los Angeles estate planning attorney with Jeffer, Mangels, Butler & Marmaro.
“This is like the tree falling in the forest” with no one to hear it, Mitchell said. “If no one can find a living trust, I guess it doesn’t exist.”
You may want to expand your search. Check your dad’s papers for any bank he may have done business with, and find out whether he had a safe deposit box there. If he didn’t trust a bank with the document, it may be hidden somewhere in the house. Estate appraiser Julie Hall, author of “The Boomer Burden: Dealing With Your Parents’ Lifetime Accumulation of Stuff,” said heirs have found documents hidden in freezers, taped to attic rafters, tucked under mattresses and slipped behind the mats of framed pictures, among other places.
Review your dad’s checkbook around the period when the documents were created, if possible. If a check was made out to an attorney during that time, the signed document may have been filed with him or her.
It’s worth putting some effort into this search. A house in California can be a considerable asset. Unfortunately, probate in California is expensive and slow. That’s why many people with even modest assets opt for a living trust: to bypass probate and save their heirs money.
The house may be able to avoid probate if it’s titled in joint tenancy, Mitchell said. In that case, if your father dies first, your mom will inherit it and then could create a living trust of her own.
Dear Liz: We want to have an estate plan that doesn’t cost a ton of money. We’re both in our early 40s and have no children. I’d label us middle class, with not much money left over after monthly bills. Lawyers want too much money to “help” us. Isn’t there a better solution?
Answer: If your estate situation is truly simple, you can draw up the documents you need with Quicken WillMaker software, which is available from the self-help legal publisher Nolo at www.nolo.com. The software costs about $50 and guides you through the process of creating wills and durable powers of attorney (which you need to name someone to make financial and health decisions for you should you become incapacitated).
Nolo also has an online will form, plus a number of books that can help you, including “Plan Your Estate” and “The Busy Family’s Guide to Estate Planning.”
The do-it-yourself approach can work when your situation is straightforward, but you should consider consulting an attorney if your estate ever gets big enough to worry about estate taxes or if complications (such as children or contentious relatives) become a factor.
Dear Liz: My parents have named me as the executor of their estate. They are elderly, and I will be called upon to perform this duty in the next few years. My sister and her husband are not good money managers. My parents’ wills have been set up to put my sister’s share into a trust administered by me. Is there any way for me to protect this inheritance from a future bankruptcy?
Answer: “Spendthrift trusts” are designed to keep profligate heirs from wasting an inheritance and keep creditors from seizing the trust money. These are fairly common trusts, but the wills have to be properly worded; if you’re not sure, have an experienced estate-planning attorney review them.
While you’re asking your parents for copies of their wills, see if you can talk them into naming someone else to be the trustee. Putting one sibling in charge of another’s money is a recipe for disaster and continuing disharmony. Even if your sister understands she’s hopeless with money, she is almost certain to resent you for standing between her and her inheritance. In many cases, the family would be far better off paying a fee to a bank or a professional fiduciary to be the “bad guy” controlling the cash.
Dear Liz: When you create a will and appoint someone to be the guardian of your children, must that person be present to sign legal documents accepting the job? And can that person later change his or her mind?
Answer: The person you name to be the guardian of your children does not have to be present when you create your will or other estate-planning documents.
But you better make darn sure that you have the potential guardian’s willing consent.
Taking care of someone else’s children is a huge responsibility, and not one that should be taken, or given, lightly. You’ll want to have a full and frank discussion with this person in advance, including what financial arrangements you’re making to take care of your children should you die while they’re minors.
Even if the person consents, understand that nothing is written in stone. Should you die, the person still could change his or her mind and decline the job. That is one of the reasons why you’ll want to name at least one back-up person in case your first choice can’t or won’t serve.
Also, many attorneys would advise you to name one partner in a couple as primary guardian, rather than both parties. If the couple later splits up or one dies, you don’t want any confusion about who you wanted to take care of your kids.
As difficult as these discussions and choices can be, you should make the effort. If you don’t name a guardian, they could wind up at the center of a bitter court battle, or in foster care. Your kids deserve better.