For almost a decade, she’d helped seniors and their families find services for healthcare, mobility, and estate planning. For what she went through with her own mother, she knew the pitfalls and problems that can happen when wills aren’t executed properly, family disputes explode, and corrupt courts see green. She thought she took all the diligent steps to ensure I would never have to endure the same. And now, at her funeral, I’m seeing the same ‘mistakes’ force me into the same process she had to do. Death is difficult enough. Why do we allow laws that make it so much worse?
A will gets thrown-out. Family member’s identity is questioned. Family history gets analyzed. People who specialize in taking money from others see blood in the water. Unscrupulous family members see an opportunity for quick cash. Government agencies start poking around looking for a payday. Your lawyers are fighting lawyers half-way across the country. Property is put in legal-limbo for years, costing your estate money each month. In the end, no one even remembers the deceased. How could it go so wrong?
I’ve seen it happen in my own extended family, and I’ve heard stories of much worse. Luckily, I didn’t experience half these evils when my mother died. A sole survivor with no siblings, a notarized will, and no major debts but a mortgage, it should have been easy. Not even close. An old probate lawyer, ready to retire, took my case and let slip some tips the rest of you should heed.
1. The Hand-written will and the careful hedging of bets.
A Hand-written will? Quaint? Only in emergencies? Not even. Every county government has jurisdiction over deaths and estates. Cities may perform investigations, but the paperwork is generally county. And every county has the right to determine it’s own laws regarding what is proper procedure, and what isn’t. This includes the validity of wills. Every county, in every state. Do the math. And all these rules are valid for today, only. Tomorrow… who knows? Yes, you may have used a lawyer. You may have the necessary witnessing and notarizing. But, you don’t control the law. You don’t control when and where you die (usually). Kathryn (my mom) thought she had done her best to ensure smooth transition after her passing. Notarized and witnessed, her immaculately-written last testament was a prime example of organization and clarity. And since I was the only person mentioned, executor and inheritor, there was nothing to confuse.
One day in probate court rendered it garbage.
On this particular day, eErie County required a notary and 2 witnesses. I had 1. Therefore, her wishes get completely ignored, and the long probate process begins. This type of insanity happens daily, rarely for logical reasons. Some counties in U.S. require notary and witness, or just a few witnesses, or witnesses and a judge, or nothing at all. And this all changes with the seasons, or who was elected this year. There is no way to predict how to satisfy a government of the future, or advocate for yourself after you’re dead. The best bet- use all the tools you have now.
* The U.S. government holds an old tradition, respected by most county governments, pertaining to what is called a “holographic will”. Simply, it allows hand-written declarations by the deceased to act as an un-witnessed, but legally valid, document. Some counties hold these as more verifiable, more ‘valid,’ than a traditional will. Though, some foreign countries claim they are completely invalid. Go figure. In the U.S., a holographic will can supersede other wills and overcome any witnessing requirements because, basically, there is potentially more handwriting-material to analyze and validate, thus more difficult to counterfeit.
* Most governments have a ‘foreign wills act’. These have little to do with other nations, though. “Foreign”, in this case, means from another county. Most communities having this clause will accept a will created elsewhere. Essentially, a will created in another jurisdiction, following that jurisdiction’s laws, will be honored in the county of probate. Though, enforcing this does require a good lawyer. Unfortunately, this isn’t up to you.
* Clarity- clarity- clarity. Ensure that what you write is understandable to someone other than just you. Judges may be intelligent, but they are no more capable of unraveling meaning from garbled grammar or recursive logic than anyone else. Also, remember to include contingencies, just in case your first preferences become impossible. Have it proof-read, BY SOMEONE ELSE. Use a pre-formatted will as a template. Or, simply use your original customized will from your lawyer, and just re-write it. Legibly.
So, the steps to creating a good will: Investigate proper formatting and witnessing for your community. Get good template and make draft. Carefully hand-write this will. Include date and location of its writing (to satisfy foreign wills act). Finally, witness and notarize according to local laws, just like a non-holographic will. No will is bullet-proof. Lawyers get preoccupied and don’t pay attention. A corrupt judge needing something to do can do whatever he/she wants. Your beneficiaries may end-up in probate no matter what you do. But, this will can minimize those chances, and make it much harder for anyone, be it a scammer, disgruntled family member, or bored judge, to work against your wishes.
2. A Pre-paid burial
Making a will is morbid enough. Paying for burial expenses when you’re feeling fine is a downright 10 on the creep-o-meter. And worse, it becomes another technical financial instrument until used. So, there’s tax laws, Medicare/Medicaid laws, transferability procedures (don’t think that just because you live where you do now, you won’t move later, or worse, your funeral home goes out of business; transferability is a big deal), investment interest handling, and a host of other considerations when purchasing a pro-paid funeral plan.
BUT, it’s benefits are golden. Not only does it take the burden off your loved-ones, it locks-in your service wishes and gives the hospital a disposition plan for your body. No one thinks of that- disposition. But, at your death, this becomes a confusing and hurried burden for your family. Hospitals don’t give families time to organize things, unless you’re a rich hospital donor. Sometimes, not even then. Most hospitals simply don’t have extensive… storage facilities. Your family will most likely need to give location of funeral home immediately. The loss of a love one is not the best time to do comparison shopping. Make the decision now and give your family a gift better than any inheritance could buy.
3. Accounts: Payable-on-death
Most people I’ve talked to know of the POD option on bank accounts. If you don’t, it only takes a few minutes at your bank to update your accounts. Quick, easy, and probate-less. That’s right- no court order required to access accounts. Only a certified death certificate from the county is required. This is important when family is trying to pay for your final expenses and debts.
4. Titles: Transferable-on-death
Didn’t know about this one? Yes, your titleable property- cars, boats, houses, can all have the same rider as a POD bank account. See local title bureau for details. Not quite as quick, costs price of reprinting a title, but still PROBATE-LESS.
5. Reverse-Mortgage? Stay away unless no other option.
When you need money, the terms of these loans seem reasonable. Receiving money based on the value of your house, and no need to pay it back for the rest of your life, multiple ways of receiving that money, and financial laws that help to ensure you get what you contracted for. It all seems very tempting. But when talking to advocate working for local senior assistance agency, she said that they generally shy-away from suggesting these products because, currently, she’s unsure that most of these aren’t scams. This is based on the contracts they’re office have seen and been forced to assist-with. And, these are loans from major lenders, not fly-by-night scammers. My own experience with Wells-Fargo mirrors this sentiment. There are many terms and restrictions to the contract that one must be aware of. However, this isn’t the issue. It’s the banking games played after the death of the owner that are the most egregious. And, apparently, common.
The dragout: There is a pre-set time limit for a family to settle the contract after the death of the owner. A year is common, and seems generous. However, if you can’t work-out terms with the bank in that time, the bank forecloses on the property and takes it, regardless of the balance left on the loan. How can this happen? If a bank can refuses to talk to you even after repeated contacts, you can’t make a deal. There’s’ simply no one to talk to. Then, at expiration of the waiting period, the bank tells foreclosure judge you never contacted them, and the judge lets them take the house, due to the family’s apparent lack of action. It’s up to your family to provide phone logs, faxes, etc. proving otherwise. Since most people don’t have access to investigative or police resources to prove these types of things, the bank gets their way. Auction the house…profit. Remember, if someone is poor enough to need a reverse mortgage, their family probably doesn’t have the resources necessary to hire lawyers and investigators to pull the kinds of documents necessary to prove anything in a court of law. Property is lost, and nothing can be done. I was lucky to keep fastidious records, have investigative resources other don’t, a mortgage loan ready from another bank, and a judge that was familiar with the game this bank had played before. I just needed a court-order forcing them to provide title transfer and accept my check (hiding behind their endless bureaucracy, they refused to do it otherwise) . Most aren’t so lucky, so there is money to be made here. This is one of many techniques banks have to game the public with these instruments. No family? Don’t care what happens? Not such a bad deal. Have more at stake than this? Goto all other options first.
I wrote this a year ago, just after Kathryn ‘s death. And, when I got the nerve to publish, it was gone. The whole draft. Rewriting it has revealed gaps in my memory which I’m sure will heal over time. And then, I’ll probably rewrite this post to include all that I forgot. Oddly, I feel that the items missing were meant to be lost. I have no idea why.