In these situations, probate costs could rise dramatically:. High attorney-fee states. In a few states, most lawyers charge a percentage of the value of the estate as their fee, instead of charging a flat fee or hourly rate. California is one of those states.
And the fee is calculated on the gross value of the estate—so things like mortgages are NOT subtracted. Litigation over the estate. If someone contests the will or accuses the executor of misconduct, costs can soar. The estate will have to hire an attorney to defend it, and if the dispute goes all the way to trial, it will cost tens of thousands of dollars.
Tip: If you live in a state where attorneys can charge extra-high fees, make sure your executor knows that those fees aren't mandatory. The executor should find a lawyer who will charge a reasonable flat fee or hourly rate. Some couples decide not to leave each other a significant amount of assets. Especially if each one owns some assets independently, they may agree that each will leave most assets to his or her children from a previous marriage, or to a charity.
Many couples in second marriages, especially if they married later in life, are primarily concerned with providing for children from a previous relationship. This can work just fine, as long as when the first spouse dies, the survivor is still happy with that arrangement.
But if circumstances have changed, or the survivor simply changes his or her mind, trouble can arise. That's because state law gives surviving spouses the right to refuse to take the assets left in the deceased spouse's will, and instead choose to take what most states call the "elective share" of the estate.
This is often called "taking against the will. State law may give the survivor one-third of the estate, or a year's support, or the right to live in the family home—it varies widely from state to state. In some states, the longer the couple were married, the bigger the share the survivor can claim. Tip: If you and your spouse don't want to leave property to each other in your wills, go to a lawyer and discuss your plans.
You'll want to sign waivers, giving up your right to take against the will. Just because you were always the responsible one—or just bigger and able to push your little siblings around—doesn't carry any weight when it comes to serving as the executor personal representative of a deceased parent's estate.
Reasons include a felony conviction or a disability that makes it impossible to do the job. If there isn't a will, or the person named as executor in the will cannot or does not want to serve, then the court will appoint someone. But sibling order isn't a factor courts take into account. Instead, the court looks to state law, which sets out a priority list for who the court should appoint.
In most states, the surviving spouse or registered domestic partner or civil union partner, in states with those options is first in line. Then come adult children. If more than one child wants to be executor, they can agree to act as co-executors, but that's often a situation that can lead to family friction. It's often better if siblings agree that one of them will serve as personal representative, and will keep the others well informed about the probate court proceeding.
Tip: If you think you should be the executor, talk to your parents about naming you in their wills. Or if you're a parent making your will, name the child you think is most responsible and conscientious; don't name all your kids unless you truly think it's best for all of them to serve as co-executors.
See " Naming Your Executor. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site. The attorney listings on this site are paid attorney advertising. Probating an estate can be done without an attorney, but having an experienced estate attorney help with the administration can speed up the process by getting the paperwork correct the first time.
It could potentially costs you thousands of dollars if the process is mishandled and creditors get involved. Call our family law lawyer today for a consultation. Attorney Steven A. Harris regularly blogs in the areas of family law, bankruptcy, and real estate closings on this website. Harris tries to provide informative information to the public in easily digestible formats. Hopefully you enjoyed this article and feel free to supply any feedback.
We appreciate our readers and love to hear from you! If you do not have any living grandparents, your property will go to your closest living relatives. If you have no living relatives, your property will go to the government. Bottom of Form What is a domestic partner? Under D. Department of Health, Vital Records Division.
Two people of the same sex or the opposite sex can register as domestic partners if all of the following are true: They must be in a committed relationship and share a residence; They must be at least 18 years old and competent to enter into a contract; Each must be the sole domestic partner of the other; and Neither can be married.
Once two people have registered as domestic partners, the partnership lasts until it is legally ended. Click here for more information about the legal rights of domestic partners.
What if I am separated from my spouse, but not yet divorced, when I die? Will my spouse still get part of my estate?
My spouse and I have a common-law marriage. Will my spouse inherit if I die without a Will? Yes, subject to the rules in the chart above. However, to inherit from your estate, your spouse will have to prove to the probate judge that there was a common-law marriage. This question depends on the facts in each situation, such as whether you and your spouse lived together, filed joint tax returns, and told other people you were married.
If you are wondering whether you have a common law marriage, you should probably speak with a lawyer. How old must I be to make a Will? Anyone 18 years of age or older may make a legally binding Will. Does a Will have to be in a particular format?
No particular format is necessary for a Will to be considered valid. Does a Will have to be in writing? What are the other requirements for a valid Will? You must be "of sound mind" see below when you make your Will. You must sign your Will or, if you are unable to sign, you may direct someone else to sign the Will in your presence.
This is called "executing" the Will. You must execute your Will in the presence of two adult witnesses who must also sign the Will. A person who you have named as a beneficiary in your Will should not be a witness to your execution of the Will.
What is a Codicil? If I cannot read, can I still make a Will? Someone must read the entire document to you before you sign your Will. In the presence of two witnesses, you should affirm that your Will was read to you in its entirety, you understand it, and it correctly states your wishes. The witnesses will then affirm by their signatures that you understand your Will. If I am unable to write my name to sign the Will, can I still make a Will?
What does 'being of sound mind To make a Will, you must be "of sound mind," which means you can understand what you own and to whom you are leaving it. Just because a person is elderly, intellectually challenged, or unusual does not mean he or she is not of sound mind.
By witnessing your Will, your witnesses are giving their word that they believe you are of sound mind. What is an executor, and do I have to have one? Can my executor legally handle my affairs now? Is a Living Will the same as a Will? What can I give away in my Will? Is it possible for me to leave something to someone in my Will, but keep that person from giving or selling it to someone else?
Yes, under some circumstances, but you should speak with an attorney about specific details. You may leave something to a person only for his or her lifetime and then direct that the property will pass to someone else after the original recipient dies.
This is called a "life estate. This sometimes creates problems, however, and should be carefully considered. Do I have to leave my property to my spouse or children?
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