The more one practices in a particular area, the more "little things" one encounters. Some of them hardly ever happen, but surprisingly, some are quite common. All these little things affect how the case proceeds, how much work the attorneys have to do, and how long the matter may take. Here are just a few "little things"....
1. Sometimes a person has a right to inherit, but before they receive their inheritance, they die. We call these persons "post-deceased". A post-deceased person does not lose their rights, their estate has whatever rights they would have had. In Surrogates Court, an "estate within an Estate" is quite common.
2. What if the post-deceased person didn't have a right to inherit, but had a right to be notified of a proceeding? Same result as above, their estate must be notified. Sometimes this can really delay things, as one Estate tries to get jurisdiction over another Estate. Very frustrating.
3. A person cannot serve as a fiduciary if they were ever convicted of a felony. I once found out my client was a felon after I had gotten him appointed. While I was deciding whether I was ethically obliged to report this (once I learned of it), the Court found out from someone else and revoked his appointment. I was called in and asked about it, so I had to testify about what I knew and when. Not pleasant, and fortunately no repercussions, but a lesson learned. Now I always ask. Even little old ladies, and once, an old lady admitted that she had done time in Alabama 40 years ago. I told her I was sorry, but I could not file a probate petition for her.
4. What if someone was a convicted felon but has a "waiver of civil disability" from a court? I once had this situation, where my client was opposing the person being appointed. In such a situation it is discretionary, and the Judge appointed this low life (my opinion). Now we will end up fighting during an accounting proceeding because this person has acted quite badly.
5. What if inheritance rights depend on establishing paternity? I've been involved in quite a few of these. There are statutes and developing caselaw on the the use of DNA in posthumous paternity cases. Complicated stuff but very interesting.
The thing about probate and estate administration is, after a person dies, the money and the stuff have to go SOMEWHERE. Figuring it all out, especially when people do not agree, takes an entire specialized court, a whole set of rules, and many lawyers who know about these things at various levels of expertise.
Most of the time things are clear, and the practice is essentially administrative. But other times, mind bending complexity comes into play. When it does, it's nice to know a lot of little things.
Showing posts with label Intestacy. Show all posts
Showing posts with label Intestacy. Show all posts
Tuesday, January 20, 2015
Thursday, June 10, 2010
Who Should Really Make a Will?
Who Should Really Make a Will?
The answer to this question starts with a question.....
"Who would inherit from you if you did not make a Will?"
When I interview someone who wants to make a Will, the first group of questions I ask is THAT. There is a good reason I start with this. It usually lets me know who the "players" are. Not only that, later on, the people on my little family tree are the people who must be notified when I try to probate the will.
People are sometimes taken aback when I start off questioning them about their closest family members, and sometimes they even say "But I don't want those people in my Will". This is fine with me, but I still have to know who they are. This is because anyone who would inherit if there were no will, is someone I have to notify when the Will is being probated. Legally, we call these people "adversely affected" by the Will. They are the only people who have standing to contest a Will. Even if they are not going to be in the Will, I need to know who they are. If it's a close relation, say a child or a sibling, I will usually ask WHY they are being left out, and I make a written note of it in my file.
When somebody is left out and squawks after the person dies, having a note about it in the drafting attorneys file is VERY important. When I represent someone in a potential will contest, one thing I hate to see is a note in the drafting attorneys file explaining WHY the person is being left out. If I see this it is usually enough reason for me not to take on the will contest.
I am amazed at how often people do not consider the question "Who would inherit from me if I did not make a Will?" The place I usually see this is Estates where there is no Will, and distant relatives are inheriting. I see this often, sometimes with a lot of money involved, and I always think "Did the person never think of what the result of not making a Will would be?" "Could they have intended THIS?" Did they not have a friend or a charity that was more deserving than the cousin once removed (who never met the decedent)?
Think this never happens?
I GET THESE ALL THE TIME!!!
I frequently represent distant relatives in this position, and this is often a major score for them. I like these cases too, but at some point in the case it always occurs to me (and it sometimes occurs to people who actually knew the decedent) "they should have made a Will".
I have also had many cases where people told me "the decedent talked about making a Will", or "he told me he was going to make a Will", but for some reason they never did. I think there are several reasons for this....
Procrastination - an intent to do it in the future, and just not dealing with it.
Superstition - a fear that doing it will cause illness or death.
Cheapness - not wanting to pay for a Will.
Delusions of immortality - more people have this than one might think.
Monumental inconsiderateness - totally not caring what happens to others after you go.
Strangely, Wills are most often made by people in a tight nuclear family....say a married couple with two children. There are good reasons for such people to make Wills too, but the fact is, the results if they don't are not so different then if they do.
People who don't or can't ask the question "Who would inherit from me you if I did not make a Will?" are often some combo of cheap, procrastinating, superstitious, monumentally inconsiderate, and/or delusional (vis a vis their mortality) individuals. I don't mind this all that much, these end up being my largest fee cases, but.....it sure is puzzling.
Maybe they "just can't deal with it", and on many levels I understand and respect this. I also know that if you are the person someone SHOULD be putting in their Will, it is a difficult subject to bring up. I've had people ask me what to do in this situation. Not only is there is no easy answer, but every situation is unique.
I will say this.....if the person has talked about it, and you think they WANT to do it, help them get it done. But, as we say in poker, don't overplay your hand.
Yeah, this gets complicated. But not nearly as complicated as when procrastination wins out, and the person who should have made a will doesn't.
Next post - something not death related!!
Posted by nylaw2law 0 comments Links to this post
Labels: lawyering, Who Should Really Make a Will?, Wills
The answer to this question starts with a question.....
"Who would inherit from you if you did not make a Will?"
When I interview someone who wants to make a Will, the first group of questions I ask is THAT. There is a good reason I start with this. It usually lets me know who the "players" are. Not only that, later on, the people on my little family tree are the people who must be notified when I try to probate the will.
People are sometimes taken aback when I start off questioning them about their closest family members, and sometimes they even say "But I don't want those people in my Will". This is fine with me, but I still have to know who they are. This is because anyone who would inherit if there were no will, is someone I have to notify when the Will is being probated. Legally, we call these people "adversely affected" by the Will. They are the only people who have standing to contest a Will. Even if they are not going to be in the Will, I need to know who they are. If it's a close relation, say a child or a sibling, I will usually ask WHY they are being left out, and I make a written note of it in my file.
When somebody is left out and squawks after the person dies, having a note about it in the drafting attorneys file is VERY important. When I represent someone in a potential will contest, one thing I hate to see is a note in the drafting attorneys file explaining WHY the person is being left out. If I see this it is usually enough reason for me not to take on the will contest.
I am amazed at how often people do not consider the question "Who would inherit from me if I did not make a Will?" The place I usually see this is Estates where there is no Will, and distant relatives are inheriting. I see this often, sometimes with a lot of money involved, and I always think "Did the person never think of what the result of not making a Will would be?" "Could they have intended THIS?" Did they not have a friend or a charity that was more deserving than the cousin once removed (who never met the decedent)?
Think this never happens?
I GET THESE ALL THE TIME!!!
I frequently represent distant relatives in this position, and this is often a major score for them. I like these cases too, but at some point in the case it always occurs to me (and it sometimes occurs to people who actually knew the decedent) "they should have made a Will".
I have also had many cases where people told me "the decedent talked about making a Will", or "he told me he was going to make a Will", but for some reason they never did. I think there are several reasons for this....
Procrastination - an intent to do it in the future, and just not dealing with it.
Superstition - a fear that doing it will cause illness or death.
Cheapness - not wanting to pay for a Will.
Delusions of immortality - more people have this than one might think.
Monumental inconsiderateness - totally not caring what happens to others after you go.
Strangely, Wills are most often made by people in a tight nuclear family....say a married couple with two children. There are good reasons for such people to make Wills too, but the fact is, the results if they don't are not so different then if they do.
People who don't or can't ask the question "Who would inherit from me you if I did not make a Will?" are often some combo of cheap, procrastinating, superstitious, monumentally inconsiderate, and/or delusional (vis a vis their mortality) individuals. I don't mind this all that much, these end up being my largest fee cases, but.....it sure is puzzling.
Maybe they "just can't deal with it", and on many levels I understand and respect this. I also know that if you are the person someone SHOULD be putting in their Will, it is a difficult subject to bring up. I've had people ask me what to do in this situation. Not only is there is no easy answer, but every situation is unique.
I will say this.....if the person has talked about it, and you think they WANT to do it, help them get it done. But, as we say in poker, don't overplay your hand.
Yeah, this gets complicated. But not nearly as complicated as when procrastination wins out, and the person who should have made a will doesn't.
Next post - something not death related!!
Posted by nylaw2law 0 comments Links to this post
Labels: lawyering, Who Should Really Make a Will?, Wills
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