KASS: Will must be probated

By: Benny Kass//September 6, 2018//

KASS: Will must be probated

By: Benny Kass//September 6, 2018//

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Q:     I enjoy your column and wonder if you could answer a question for me. My husband and I are in our early 70’s and have 2 children. Do we really need to talk with a lawyer if we have a will stating the children will split our assets evenly when we pass? Note we have our 2 children also as beneficiaries on all documents of insurance policies, 401k, 457, 403b, Roth and traditional IRS’s, savings accounts, paid up home etc. We have just over 1 million in assets and no debt. Also I inherited a substantial IRA from a relative 20 years ago and (a financial institution) handled the transfer very easily to me as I was the beneficiary on my relatives account. On another easy transfer about 15 years ago my brother was able to sell our parents small home after they were deceased and split the money between all 5 of my siblings without any problem and no trust or lawyer involved. They just had a will stating all the children should split their assets.

I just don’t see the need for a trust unless we want something specific done, other than an equally shared assets to both children. I can possibly see making one child the main trustee, but couldn’t that also be said in the will? Patricia.


A:   Patricia. You do realize, however, that in most states, your Last Will and Testament must be probated. When you die, the properties you own just don’t magically become owned by the children.

The tax laws are important and must be taken into consideration when drafting your Will. This is especially true based on the new tax laws that Congress recently passed.

No, you probably do not need to create a Trust, unless you have property in different states. In that case, a Trust can make life simpler for your children.

My suggestion: buy an hour or three with a local estate and trusts attorney, and explain your situation. You may not need that attorney after your discussion, but at least you will get peace of mind – and most likely avoid any major problems you may be creating for your children.

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Q;   I am a 57 year old fairly healthy female, have one biological daughter (30 years old), currently married (in 2012), retired from the federal government January 2018. I’m the sole owner of 2 properties that I want to specify how they are to be handled upon my death.

The 1st property I purchased in 1994 when I was single. The property is now a rental property with 7 years remaining on the mortgage before being paid in full. I wish to leave 100% of this property to my daughter with the stipulations that she can continue to rent the property as long as she wants, otherwise she must give the tenant a one year notice before selling the property or evicting the tenant.

The 2nd property is my primary residence which I purchased in 2010 for $285,000 and my name is the only name on the deed. Upon my death the stipulations for this property would be: My husband and daughter share 50/50 percent of any proceeds from the sale of the home.

  1. My husband can live in the home as long as he can pay the mortgage and maintain the property if the house is not paid off.
  2. My daughter must have access to monitor the mortgage, property taxes and water bills to ensure the house does not go into foreclosure.
  3. My daughter can live in the home with my husband for as long as she wants with any children she may have at that time along with her legal husband. (no boyfriends or baby daddy).
  4. The home can only be sold .

– Diane

A:     Interesting, but why are you telling me this. Talk with a local attorney and have him/her create a Last Will and Testament for you. Alternatively, you may want to put your two properties in Trust.

Your lawyer will review your wishes, and tell you whether they make sense and whether they are practical. I have my own thoughts but will let your lawyer give you advice.


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