Tag Archives: Probate law

A major issue related to divorce of same sex couples – Defeat of DOMA doesn’t solve every problem

Although DOMA has been overturned by the U.S. Supreme Court, there is a major issue related to the divorce of same sex couples.

This issue is exemplified by the plight of Adam Cardinal, a gay man.  More than four years ago, Mr. Cardinal married his love, who happened to be of the same sex.  They were married in New Hampshire where same sex marriages are legal.

The couple subsequently moved to Florida, where their marriage is not considered legal and it is in Florida where the problem arose.

Several months ago, they separated and wanted a divorce.  However, since their marriage was not recognized in Florida, they could not obtain a divorce there.

The other option, returning to New Hampshire where they were married, was not feasible.  Although you just need a short visit to marry in New Hampshire, that state requires at least a one year residency before it will grant a divorce.  Since the former couple did not have the flexibility to pick up their lives and move back to New Hampshire, they are stuck.

They cannot divorce or remarry.  They are in limbo.  If one of them dies in a state where same sex marriage is legal, and he does not have a will, their still legal spouse may inherit everything.  Even though Mr. Cardinal and his spouse did not merge their funds, the lack of legal paperwork signifying the end of their marriage may cause financial issues in the future.

Six of the states that recognize same sex marriage, including Delaware and Vermont, allow nonresident couples who married in the state to divorce under some circumstances, but those circumstances are not clear cut.

DOMA was just recently overturned and a lot of details about the related wide ranging issues remain to be addressed.  States have a lot of work ahead of them as they figure out how to handle all of the specific issues related to same sex marriage and divorce.

To learn more about estate planning and other issues related to end of life issues, go to www.diesmart.com.

Probate Without a Will

WHAT TYPE OF PROBATE PROCEDURE IS REQUIRED IF SOMEONE DIES WITHOUT A WILL?

There are two types of probate estates:  (1) intestate; and (2) testate.

The probate procedure followed if the decedent  did not leave a valid Will is referred to as an intestate estate..

A probate procedure followed if the decedent did leave a valid Will is referred to as a testate estate.

Q. What is the difference between a testate estate and an intestate estate?

A. For a testate estate, the Will controls who receives the decedent’s assets and the Will nominates an executor who manages the probate process.

In an intestate estate, state intestate succession laws dictates who is entitled to the estate.  State laws also determine who the court appoints as the personal representative to manage the probate process.

One other difference between a testate estate and an intestate estate is the rules regarding surety bonds.  The person who prepares a Last Will and Testament can include instructions waving  the executor’s requirement to purchase a surety bond.  This requirement of the personal representative to purchase a surety bond cannot be waived in some state when there is no valid Last Will and Testament, making the probate process most costly for intestate estates.

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Q. Are the duties of the personal representative any different than those of the executor?

A. The personal representative appointed by the court has the same responsibilities as an executor named in a will.

The personal representative  must inventory the decedent’s estate and determine if the estate has probate assets.   If the estate has probate assets, the personal representative must determine whether to follow the state rules for small estate or a court supervised formal probate procedure.

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The Probate Court

WHEN IS THE PROBATE COURT INVOLVED IN OUR AFFAIRS?

The probate court has a responsibility to manage our affairs when we can’t.

This can happen in three different situations:

  1. You die and own assets titled in your own name, or the estate is the beneficiary.  Since you can no longer manages these assets, someone must be given the legal authority to manage these assets on your behalf.  The probate court has the responsibility to appoint an estate representative and monitor the activities of the estate representative.
  2. You become incapacitated.  The law will consider you unable to manage your financial affairs or make your own health care choices.   Someone must be given the legal authority to make choices for you.  The probate court is obligated to appoint a conservator to manage your affairs, and then supervises the activities of the conservator.
  3. A minor child is named as a beneficiary.   Since minor children cannot legally “own” property, a guardian must be appointed to manage their affairs until the minor child is considered an adult.  The probate court has the responsibility to appoint a guardian and to monitor the actions taken by the guardian.
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"Working through a probate court without a plan was a nightmare."

When the probate court is involved, several things happen:

All of the information regarding you and your financial or health affairs are public records.   In many courts, these records can be accessed online by anyone.

The cost of probate comes from your net worth.   These costs can include court filing costs, legal fees, surety bond, and reporting fees.

The person appointed to be in charge of making choices for you or your minor children must follow choices set by state statutes, which may not be your choices.

The courts will appoint someone to act on your behalf, or on behalf of your minor children.   This person may not be someone you would want making choices for you and your minor children.

You can find out more about the probate process and avoiding probate on these pages:

Authentic document

An authentic document is one that you state considers to be a legal representation of your wishes.

A Last Will and Testament

  • If you have a will, most states require your estate representative to file the original copy with the probate court.
  • If the original copy cannot be found, some states will consider you to have died intestate.

A Living Trust

  • If you have a living trust, copies of your living trust are considered authentic, binding documents.

Special needs children

If you have a special needs child, it’s important for you to understand the difference in outcome between leaving them assets in a will or a trust.

A Last Will and Testament

  • If you give assets to a special needs child via a will, the assets are now considered property owned by the child.
  • The value of the assets may eliminate the opportunity for a child with special needs to obtain assistance from available local, state or federal assistance programs.

A Living Trust or a Testamentary Trust

  • If your trust has instructions to manage assets on behalf of a special needs child, these assets are not considered to be owned by the special needs child.
  • The value of these assets is not considered when applying for local, state or federal assistance