Ask the Lawyer: Probate Q&A

[Dave70968]

Where is the best place for me to start a living will? I've done one before so how do I go about it and how much does it cost?

a living will or a will?
2 different animals.

liv·ing will
ˈliviNG ˈˌwil/
noun

1. a written statement detailing a person's desires regarding their medical treatment in circumstances in which they are no longer able to express informed consent, especially an advance directive.

What he said. Living wills, advance directives, and medical powers-of-attorney are all related (and, tangentially related, the durable power of attorney). They're all relevant before you pass your last breath; probate is all about afterward. We can open a new thread on that topic, though.

 

[Dave70968]

Well crap I guess a will. Just want it know where and who I want my crap to go when I die.

Okay. Yes, that's an ordinary will ("Last Will and Testament," not to be confused with "Last Will and Temperment," which I want to be played at the reading of my will!).

If you have an existing will, you have two options: start from scratch, using that one as a guide as appropriate, or write a document called a "codicil," which is just a fancy word for "amendment." A codicil isn't a free-standing document: it exists in the context of the original will, making changes as necessary. The original will remains in full effect to the degree that it does not conflict with the codicil; the changes in the codicil supersede the original will only to the degree that they conflict. The formalities (signatures, witnesses, etc.) for a codicil are the same as for the original will.

Alternatively, you can publish a new will. A new will explicitly revokes the original will and is a complete, free-standing document in its own right. You write it just as if you were writing the first one, and it needs to completely dispose of all of your property; you also need to follow all of the same formalities of the original will.

Advantages of a codicil: simple, efficient, probably cheaper to do because it'll take less time. This is especially useful when you have a complex estate and a commensurately complex will. Disadvantages: it depends upon the original document to have any meaning, and inconsistencies or ambiguities between the two can get ugly, requiring the probate court to sort out the intent. That means a longer, more expensive probate process, and the possibility that your intent may not be carried out.

Advantages of a new will revoking the old one: much cleaner, no modifications or changes to resolve; the intent is plainly stated on the face of a single document. It also has the benefit of being drafted by a single person, so you don't have multiple people with different things in mind writing in different styles, potentially creating ambiguity. Disadvantages: potentially more expensive due to re-writing what's already written. If it's a simple will, this shouldn't be a big deal, particularly if it's a flat fee; when I do simple, flat-fee work, I'm working from a template anyway, so it won't take me any longer to do it either way.

 

[foghorn918]

Living wills and advanced directives are not a DNR (do not resuscitate), even though that may be your wishes expressed in them, you also need a DNR document as well.

 

[MacFromOK]

My wife and I had a lawyer make our will years ago. It basically leaves all my stuff to her, and all her stuff to me (with other provisions if we both die). Our home and shop property is in both our names.

Is it necessary to probate a simple will like this if one of us dies? If so, approx what would it cost to probate?

Thanks for the thread, Dave.

 

[CHenry]

I wrote my own will, had it witnessed by 2 others and signed. But it was simply.

 

[Dave70968]

My wife and I had a lawyer make our will years ago. It basically leaves all my stuff to her, and all her stuff to me (with other provisions if we both die). Our home and shop property is in both our names.

Is it necessary to probate a simple will like this if one of us dies? If so, approx what would it cost to probate?

Thanks for the thread, Dave.

To do it right, yes. Technically, without being named as Administrator or Executor, the survivor is writing checks without authority, which is a form of fraud. Anything with a title (cars, etc.) will also need something from the court authorizing the survivor to re-title it, or else it'd be a fraudulent conveyance. I'd consider it a "no harm, no foul" matter, but it is still technically improper, and subject to challenge later (see the bit about providing protection for you, the Administrator/Executor).

The house/shop may or may not be an issue, depending upon the nature of your joint ownership. If you're tenants-in-common, you each have a half-interest that is separate from the other, and would need to be probated. If it's set up as joint tenants with right of survivorship (JTROS), then the decedent's interest automatically reverts to the survivor, and you should be able to take a death certificate to the county clerk to get the property re-deeded.

As to cost, it depends upon the lawyer, but I've commonly seen summary probate done for $2500. I've been known to work for less, especially for people I like. The benefit isn't just that it gets done as far as getting the court's blessing, but also making sure all of the right mailings go out, notices get published, etc., to extinguish other claims (creditors, potential heirs, etc.). There's a lot of peace of mind involved, along with "not having to deal with it." This sort of thing inherently comes up when you have bigger things on your mind--the loss of a loved one--and it can take a load off your mind knowing that it's done right, so you can worry about dealing with your grief.

I wrote my own will, had it witnessed by 2 others and signed. But it was simply.

If that's all you did, then the process may require the witnesses to come testify as to the authenticity of the will. There are a couple of other things we can add to the package to make it self-proving, simplifying probate later.

 

[DavidMcmillan]

Great information! Thank You!

 

[MacFromOK]

To do it right, yes. Technically, without being named as Administrator or Executor, the survivor is writing checks without authority, which is a form of fraud. Anything with a title (cars, etc.) will also need something from the court authorizing the survivor to re-title it, or else it'd be a fraudulent conveyance. I'd consider it a "no harm, no foul" matter, but it is still technically improper, and subject to challenge later (see the bit about providing protection for you, the Administrator/Executor).

Alrighty then.

Everything is in either my name (vehicles and two bank accounts) or both our names (one checking and both real estates). I also have durable power of attorney.

I really don't need any more headaches if I'm the survivor. And if sweetie outlives me... well, she can't take care of business anyway (can't even sign her name anymore). In that case, her daughter will probably wind up with everything, and blow it in short order. :/

Many thanks Dave, you da man.

 

[Dave70968]

Alrighty then. Everything is in either my name (vehicles and two bank accounts) or both our names (one checking and both real estates).

I really don't need any more headaches if I'm the survivor. And if sweetie outlives me... well, she can't take care of business anyway (can't even sign her name anymore). In that case, her daughter will probably wind up with everything, and blow it in short order. :/

Many thanks Dave, you da man.

Happy to help.

Just out of curiosity, you mention "her" daughter; do you have any kids? If so, things could get more interesting. Feel free to PM me if you'd rather discuss it privately.

 

[MacFromOK]

Happy to help.

Just out of curiosity, you mention "her" daughter; do you have any kids? If so, things could get more interesting. Feel free to PM me if you'd rather discuss it privately.

Not together. She had one daughter and one son when we met.