Tag Archives: Probate

Was she swindled out of joint property?

We came across a column about a women whose husband asked her to give up the rights to their home…and 10 years later they were divorcing. The column is from The Moneyologist; it teaches a good lesson and I think you may find it very interesting. We’re publishing it in its entirety.

Dear Moneyologist,

My husband and I have been married 14 years. We live in California and I am contemplating divorce. I am 62 and he is 65. When we married, he owned a home (with a mortgage) purchased five years prior. A few years into our marriage, when interest rates fell, he refinanced the home. A couple of days before submitting the application, he asked me to sign an inter-spousal transfer of ownership (known as a quitclaim).

The reason: He said I had a student loan which had at one time been in default and we would not be able to receive a good interest rate, or that the loan might be altogether denied. He promised that as soon as the loan was approved, he would follow up by putting me back on title.

A few weeks later, we purchased a second home (cabin). Just a few minutes before going in to finalize the purchase, he asked to sign another quitclaim, citing the same circumstances. The mortgage on the cabin is underwater at this time.

It has been 14 years since this happened, and he refuses to add me to the title. He finally admitted that he indeed had an ulterior motive, as he witnessed a friend who underwent a divorce and lost a house to his former spouse and that he was not going to be “taken advantage of” if we divorced.

What are my options? I feel that I was deceived and that this constitutes fraud. About 90% of his investments were made before we were married, and I am also aware that he has made no provisions for me in his will nor named me as a beneficiary to his life insurance.

Beverly in California

Dear Beverly,

The investments he had prior to your marriage belong to your husband and he is free to name anyone from the next-door neighbor to the window cleaner on his life insurance. Now, the good news:

California — in addition to Arizona, Idaho, Louisiana, Texas, Nevada, New Mexico and Washington — treat all marital assets as community property. That means that assets acquired during the marriage are divided equally between the two spouses. “Notwithstanding an agreement otherwise, upon the death of a married person, one-half of the community property belongs to the surviving spouse and the other half belongs to the decedent,” according to California Probate Code Section 100(a). Why is that important to you? Because the refinancing of this home and the purchase of the cabin were made during your marriage, so it’s irrelevant whether your husband had you sign a quitclaim or not.

Well, not quite. A judge could look unfavorably on your husband’s behavior and your testimony (if you don’t have it in an email) that your husband did this because he wanted to prevent you from even owning the property you both bought during your marriage. There is a precedent for this: In 1996, a California woman won $1.3 million in the lottery and filed for divorce 11 days later without even telling her husband or anyone else about her windfall. A couple of years later her husband discovered her deception and sued. Superior Court Judge Richard Denner ruled that she acted out of fraud or malice and awarded her husband all of her winnings. A judge could, in theory, take a similar view and punish your husband.

Your husband’s shady behavior could end up doing him more harm than good in any divorce settlement. There are a lot of good, honest people out there waiting for you post-divorce.

Check out our website, www.diesmart.com for more information.

Credit card debt after death – what you need to know

It’s often incredibly difficult to cope with the death of a loved one. A creditor knocking on your door makes it even more difficult.

Can a creditor collect a credit card debt owed by your deceased parent or spouse?

There is not one simple answer to this important question. There are many factors to be considered. Here are 10 questions and answers to help you understand what may happen.

Are family, friends or heirs responsible for your debts?
When you take out a credit card in your name, you’re agreeing to repay whatever you borrow. That obligation usually doesn’t extend to anyone else. The only exception is if you had a joint account holder. That person would be responsible for all debt incurred through use of that credit card, even if the debt was not run up by that joint account holder.
Direct creditors to the executor.
When you die, your obligations will transfer from you to your estate. The executor of your estate will be responsible for handling all of your estate’s financial issues, including your debts. If a family member gets a call about a debt and isn’t the executor, he or she should direct the caller to the executor and tell that person not to call again.

Notify creditors and the credit bureaus.
The executor should notify any known creditors as soon as possible about the death. They should also notify the three main credit reporting agencies – Experian, Equifax and TransUnion – and request that the accounts should be flagged “Deceased: Do not issue credit”. This will help prevent a very common problem – identity theft of the deceased.

The executor should also request a copy of the deceased’s credit report. This will help him to identify any outstanding debts.

Find out who’s responsible.
As previously mentioned, people who request credit together are equally responsible for the total debt. The same is true with a co-signer of a loan, who by cosigning is guaranteeing the debt of the borrower.

Authorized signers on credit card accounts, however, aren’t liable. They didn’t originally apply for the credit; they were just allowed to ”piggyback” on the account of the person who did.
Stop using credit card accounts.
If you’re an authorized user on a credit card account, you shouldn’t use the card after the main cardholder dies. Because you’re not liable for the debt, this could be considered fraud.

A surviving spouse can request a card in his or her own name. However, it will most likely be a new card application, based on the survivor’s credit history, income, etc.
Don’t split up all of the belongings yet.
Nothing should be distributed until after the estate has settled its debts. If there’s not enough money in the estate to pay those debts and belonging have been distributed, the heirs could become responsible for those debts.

Ask creditors for help.
If a surviving spouse is a joint account holder and is having trouble paying the bills, he or she may be able to work something out with the creditors. He or she may be given time to get organized or to come up with the needed money.

Community property states are different.
If you live in a community property state (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin and, if you choose it, Alaska) one spouse can be liable for the debts of the other, even if they didn’t agree to them or even know about them. In these states, the surviving spouse will most likely be responsible for any credit card debts.
If an estate can’t pay, the lenders lose.
If the estate has more debts than assets to pay them, creditors may be forced to write off those debts.
When in doubt, contact an attorney.
Figuring out what to do about estate debts can be complicated so you might want to contact a probate attorney for help.

For more information about identity theft of the deceased or how to settle an estate, check out our website, www.diesmart.com
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When is online estate planning a good idea?

First of all, what is estate planning? It’s the process people follow to protect their estate and their family in case of their incapacitation or death. It includes such things as writing a will, naming a guardian for an surviving minors in the family, creating trust accounts, naming an executor for the estate and setting up a durable power of attorney.

Traditional estate planning can be quite expensive and many people can’t afford it so they are turning to an online option – the virtual legal service. For example, a traditionally written will can cost between $500 and $1,000 to prepare. An online version can be done for an average of $60, a much more affordable choice.

Here are three questions to ask yourself before you decide whether the online option is a good choice for you.

Do I have a simple situation?
If you don’t have any minor children and your estate is relatively small, you probably could use an online service such as Rocket Lawyer.
How big is my estate?
If you have assets and insurance in excess of the current estate tax exemption ($5.45 million per individual in 2016) the online option probably is not for you. You would do better to work with an estate planning professional who will help you evaluate the ways you can leave money to your beneficiaries while minimizing estate taxes. This could include setting up a trust that would minimize taxes and avoid probate.
Do I need expert legal advice?
Even with a small estate, you may have special circumstances that require expert legal advice. For example, if you are part of a blended family, own property outside of your state or have a disabled family member, online planning may not be for you. You may need to speak with an attorney to discuss your specific needs and to work with that expert to create a plan that meets your needs.Although online estate planning is a good choice for many, make sure you consider your current situation, the size of your estate and your other circumstances. Then decide whether hiring an estate planning attorney is the best option for you or whether you can comfortably go the online route.

For more information about estate planning, check out our website www.diesmart.com.

Facebook declared people prematurely dead. Were you one of them?

On Thursday, 11/11, Facebook had a bug. It was one that managed to modify user profiles and declare those users dead. Even Mark Zuckerberg, Facebook’s founder, appeared dead on the site.

Despite being very much alive, users found their accounts switched to a “memorialized account,” reserved for the deceased, with the word “remembering” posted beside their name.

A statement reading: “We hope people who love Mark will find comfort in the things others share to remember and celebrate his life,” appeared on Mark Zuckerberg’s profile before being corrected.

Facebook provides a form to request the memorialization of accounts of the deceased. It requires documentation of a death, presumably to prevent people from triggering errant notices. If this option is selected, their profile will continue to exist, but only as a memorial. A logon is no longer available but people can post memorial messages to the deceased.

Many people woke up Thursday to find that their accounts had been memorialized and Facebook thought they were dead. I imagine that could be very scary for someone who’s still alive. The bug has now been fixed

To learn more about memorialization and what to do about other online accounts when someone dies, go to www.diesmart.com.

Do I Really Need a Will?

Yes, you do. A will is a legal document which ensures that your property is transferred according to your wishes after your death.

If you don’t have a will, here are five things that can happen. We found this list at nerdwallet.com.

Spendthrift heirs – If you have heirs who aren’t equipped to handle a large sum of money, receiving it may cause damage. Perhaps these heirs are bad at handling money or, maybe, they’re drug or alcohol addicts.
Unexpected or contested heirs – There may be confusion about who the beneficiaries really are. Sonny Bono, musician and politician, died without a will. His ex-wife, Cher, and a man who said he was Bono’s son tried to claim part of his estate, which his wife, Mary, contested in court. Prince’s estate is another classic example. Many people came out of the woodwork claiming to be relatives, entitled to a piece of his assets.
Property (and probate) in multiple states – If you own property in more than one state, your estate will have to go thru the probate process more than one. Probate is a costly and timely process, even if you just go through it once. Image if you own property in four states and your heirs have to hire four attorneys and go through the whole process four times.
Fabricated wills – If you don’t have a real will in place, it’s possible for someone to create a fake one – especially if your estate is large. A famous case involved the estate of tycoon Howard Hughes. When he died, several supposed wills surfaced, and his estate spent millions of dollars defending against the false documents.
Beneficiaries don’t like the court appointed executor – If there’s no will, the probate court will appoint one. It may likely be an experienced attorney but not necessarily one the family knows. It may take a great deal of time for this person to take inventory, appraise assets and distribute the estate. If you have a will and name a family member as executor, that person will usually do a much faster job, possibly because that person is also a beneficiary.

If you don’t have a will, you should prepare one now. Otherwise, your assets may not be distributed the way you want them to and a lot of extra money will go to attorneys and the probate court and not to your heirs.

For more information about wills, trusts and other estate planning documents, go to www.diesmart.com.