Death Administration

Friday, August 28, 2015

My Husband Died. Do I Need to Probate His Estate?

By:  Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho 

It depends. 

If a deed to the home or other real property is titled “George and Sally, Husband and Wife” it will be necessary to “probate” George’s estate to remove his name and put the deed in just Sally’s name..

Probate is a process where Sally, the surviving spouse, files a variety of papers at the court and she asks to be allowed to manage her husband’s affairs. A judge will sign an Order that gives her the power to sign on behalf of her deceased husband. Once she has that power she can sign a new deed putting the real property in her individual name. If she does not probate George’s estate, Sally will not be able to sell the home or other real property. Why? It takes two signatures to sell the property. Both owners, George and Sally, need to sign the deed, but without a probate, Sally has no legal authority to sign on behalf of her deceased husband, George.

If the husband’s name was not on a deed, but the total value of all his other assets titled in just his name, such as vehicles, bank and brokerage accounts and other investments exceeds $100,000, his estate must also go through the probate court.

Usually it is easy to collect life insurance, annuities and retirement accounts, if a beneficiary was listed to receive that asset at death. Sally, the surviving spouse, can just call the company that holds the asset and they will send a form to complete and return with a certified copy of the death certificate. The company will then send a check to Sally.

If there are joint bank accounts, the surviving spouse should have no trouble continuing to use that account. Often the social security number of the husband was used as the tax identification (ID) number for the account. The tax ID number should be changed to the wife’s social security number.

George and Sally could have planned ahead with a qualified estate planning attorney and eliminated the cost and time it takes to probate George’s estate.

Friday, June 22, 2012

Who Will Fight Over Your Estate When You Die?


By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho

Here are two recent headlines “Uncivil Fight Over Rosa Parks Estate”[1] and “Dispute over Thomas Kinkade’s will heads to court”[2]

Rosa Parks, a civil-rights pioneer, died in 2005 leaving personal papers and effects worth potentially millions of dollars.  Her Last Will and Testament left most of her estate to a friend and a charity.  Two attorneys were appointed by a Michigan probate judge to handle the estate.  A lawsuit has been filed by the two heirs to remove the judge and recover administrative and attorney fees of $595,000 that have been charged against the estate.   What is the end result?  More attorney fees and less money to be distributed to Mrs. Parks friend and charity.  This result is clearly not what she wanted.

Then there is the Thomas Kinkade Estate.  This financially successful artist died in April, 2012 at age 54.  His girlfriend found his body.  At the time he had been  separated from his wife for two years, and living with his girlfriend.   The girlfriend has asserted a claim for $10,000,000 and a mansion, all based on two handwritten notes that were signed in 2011.  A hearing has been set for July where the court “will determine the authenticity and legal weight of the notes.”    What a mess.

There will be a huge amount spent on personal anguish as well as attorney fees in these two cases. 

How could this be avoided?  Working with a lawyer who understands estate planning ways to accomplish a client’s goals is a great first step.  Estate planning documents need to be kept up to date, because the Last Will and Testament goes into effect on the date of death, which may be years down the road. 

What can you do to avoid fights when you die?  Make certain your documents are up to date.  If they are not, or you are not sure, set up a review appointment with your estate planning attorney.

[1] The Wall Street Journal, May 18, 2012 page A2

[2] Associated Press, June 13, 2012



Friday, April 13, 2012

Where Do You Keep Your Important Papers?

By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho


         Who knows where you keep your important papers?  In an emergency situation, valuable time could be wasted tracking down important legal papers.  Make it a point to tell your children, successor trustee or personal representative where they can find your original documents.  If you store those documents in a safe deposit box, or a safe at home, make certain they have the ability to get into the box or safe. 

         We frequently receive calls from our clients’ family members who want to know where they can find these documents, and they need them “now” because there is a family crisis.   There are legal limitations that tie our hands so often we cannot provide our copies to the family. 

         You do not have to tell anyone about the contents of the papers, just let them know how they can access them in an emergency.

Friday, March 23, 2012

Whitney Houston's Will Is Now Public - What Was She Thinking?

By Susan M. Graham, Certified Elder Attorney, Senior Edge Legal, Boise, Idaho


Whitney Houston’s Last Will and Testament is available on the internet and everyone can see the terms of her estate plan.  Her estate goes to her daughter and is managed until she is 30, with some assets going to her earlier.   Do you want your affairs made public?  There were similar news reports about the Last Will and Testament for Jackie Kennedy Onassis and Elvis Presley.   Every word of their Wills became public.

How does this happen?  When someone dies with a “Last Will and Testament,” their Estate must be probated in the local court.  This means the Will is filed with the court along with a petition requesting that the terms of the Will be followed and that someone nominated in the Will be appointed by the court to wind up the affairs of the deceased person.  All of these documents filed with the court become a public record and are available for anyone to view.  They just need to go to the courthouse and pay for copies.  

Maybe this is not a problem for some people.  But many of us would not be happy if the details of our personal lives were available for strangers to review.  It is none of their business.

If this is a concern of yours, you may want to consult with your lawyer about how to create an estate plan that keeps your affairs private and still accomplishes your planning goals.

Friday, September 30, 2011

You Have Been Nominated as Personal Representative! Lucky you?

By Susan M. Graham, Certified Elder Law Attorney, Senior Edge Legal, Boise, Idaho

You may be nominated by a family member or friend to handle their affairs when they die.  It is certainly a compliment and an honor, but also a huge job.  You may want to think twice before you accept, or consider hiring professionalsl to assist you.

There is a long list of steps that need to be taken and the time period to complete the process is easily a year or more.

Some steps are easy, such as changing the locks on the house and making sure the mail is redirected to your address.

Many steps can be more difficult, such as preparing a proper accounting, investing the assets appropriately during the period of administration so you don't lose money, settling family disputes and arranging for care for a dependent family member.  It is often difficult to get through this process and have family relationships remain on a good footing.

An important first step for the person signing a Last Will and Testament or Trust is to talk to the person they are appointing to handle their affairs to see if they are willing to take the job.  That too is a good time to bring up any special concerns that either person may have about the job and the process, which should help when the time comes.

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