Husband died 2 years ago, still going through Probate proceedings.....

Dear Len & Rosie,

My mother’s second husband died two years ago. Shouldn’t all of his assets have been left to my mother? Why is his will still in probate and why would his will go to probate if she is his surviving spouse? I don’t understand why his will is in probate and she is still alive and needs this money to live on.

Jackie

Dear Jackie,

When a married person dies, there is usually no probate. Most married couples own all of their assets in joint tenancy, or within a revocable trust. Most of the time, everything passes outright to the surviving spouse by right of survivorship, or is at least held within a trust for the benefit of the surviving spouse for his or her lifetime.

However, some couples hold title to their assets separately. If her husband’s will left everything to her, your mother could collect his estate outside of probate with a spousal property order obtained from the court. But in many second marriages, one or both spouses have children or other beneficiaries that they want to protect. If your step-father left everything to your mother, she could make a new will and leave his beneficiaries nothing. Your step-father’s will may have disinherited your mother, or left his estate in a testamentary trust (a trust created by a will) for her lifetime benefit.

There are other legal issues that may complicate matters. If your step-father’s will was executed prior to his marriage with your mother, she may be entitled to an intestate share of his estate, either one-third or one-half of the total value of his separate property assets. Unless the terms of the will state that is was made in contemplation of marriage to your mother, the will is effectively revoked with respect to your mother, and she would be entitled to an intestate share of the estate.

Another complication is that if your mother and step-father married before his retirement, then part of his estate is community property half owned by your mother, and part of it is separate property owned solely by him.  It can become very complicated trying to figure out what exactly what consists of your mother’s interest in her husband’s estate.

If your mother needs money right now, she does not necessarily have to wait until the end of probate. She can ask the executor to provide her with a monthly family allowance for her support. If the executor is not willing to do this, then she has the right to petition the court for support from the estate.

If your mother has not already done so, now is a good time for her to sit down with a trusts and estates attorney to review her rights with respect to her husband’s estate.

Len & Rosie

Online accounts raise a unique problem

Dear Readers:

One of the most important things you should do when reviewing and maintaining your estate plan is to make it easier for those you leave behind to sort through your papers, pay your bills, and collect your assets. We have written about this before - every year we publish the List of Eleven as a tool you can use to get things sorted. 

Thanks to the Internet, it’s no longer necessary to pay your bills by mail. While many people still do so, many others have taken a paperless approach. Today, it’s possible to pay almost all, if not all, of your bills online. Big Business supports online payments, because it’s less expensive to send an email then it is to print and mail bills to millions of customers each month. It’s also beneficial to the environment.

Online accounts raise a unique problem. What happens to these accounts when you die or if you become incapacitated? If your family is unable to even access your email, how are they going to find out about the money you owe so your bills may be paid? Sure, eventually if a bill isn’t paid, they’ll mail a letter to your address of record, but that could take months and a significant amount of late fees.

The “easy” way around this is for you to maintain a list of your online accounts, including your passwords. We suggest that if you do this, it’s probably best not to store it on your computer in case it gets hacked. The risk of this is that your children can stumble upon your password list and start reading your email today. It could be very embarrassing if your family finds out about the things you may do on the Internet that you would rather keep private.

There’s a new law, made effective in California on January 1, 2017, called the Uniform Fiduciary Access to Digital Assets Act (UFADAA). This law will allow your executor, trustee, agent under a Durable Power of Attorney, or a court appointed conservator to get into any of your online accounts - including bank accounts, credit cards, emails, etc.  The new law represents a change in prior law that prohibited online businesses from sharing account access without your consent.

But what if you don’t want your family to have access to an online account? UFADAA supports the use of online tools that will allow you to designate some of your accounts as being off-limits after your death, to be destroyed instead of being opened to the eyes of your loved ones.

Len & Rosie