Trusts, Estates, and Probate Law

Due to the full faith and credit clause of the U.S. Constitution, which reads “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State,” your will executed in one state will be honored if you move to another state. So you don’t have to get a new will every time you move. This is also true of revocable trusts; they will be honored in all states. This is less true of durable powers of attorney and health care directives. While they should be honored from state to state, sometimes banks, medical professionals, and financial and health care institutions don’t accept documents and forms with which they are not familiar. In addition, for some purposes the execution requirements may be different. You ask about real estate. Some states require witnesses on durable powers of attorney and others don’t. A state requiring witnesses may not allow a power of attorney without them to be used to convey real estate even though the document is perfectly valid in the state in which it was executed.

It shouldn’t take that long. One year is a good rule of thumb. It takes time to take care of all the details, including distributing tangible property – artwork, furniture, family photos, etc. — cleaning out the house or apartment, filing the final tax return, paying off any bills, liquidating investment accounts, and, potentially selling real estate. Where there’s no probate – everything’s in trust, in joint names or has a named beneficiary – it can be quicker. The need to sell real estate or other complications can sometimes make the process take longer. In any case, the personal representative should be keeping you apprised of developments and be able to let you know when you can anticipate the process to be complete.

It depends on whether just you and your brother have moved, or your mother as well. If just you and your brother have moved, there’s no need to update the power of attorney. It’s still valid. The use of your address and that of your brother’s on the document are for identification only and have no legal significance. If your mother has also moved, it’s probably a good idea to update the power of attorney. If she’s still in the same state, the existing document is still valid, but it’s more likely that banks and other institutions will accept it if it has your mother’s current address. More importantly, if your mother has moved to a new state, it can be important that she execute a new durable power of attorney applicable in that state. While all powers of attorney should be accepted nationwide, as a practical matter local institutions more readily accept local documents.

There is no reason to go back to the old attorney. Your new documents simply supersede the old ones. In your case, you have the original documents. In some instances, the attorney holds them. If that were the case, it would be helpful to the original attorney to let him know after you execute your new estate plan so that he doesn’t have to keep the old estate planning documents secure. Most law offices have several fireproof safes stuffed with estate planning instruments, some of them for people the office hasn’t interacted with in decades. The law office could use the additional space.

No, it shouldn’t. That’s what’s sometimes called a “scrivener’s error.” The person preparing the document made a minor mistake, but that does not change your father-in-law’s intent to name your wife as his agent under the durable power of attorney. It’s not as if he has another daughter named Ann. That’s the legal answer. As a practical matter, if your father-in-law is still competent it might make sense to update and correct the durable power of attorney. You never know what some officious bank manager might object to.

We would recommend a trust. A will only dictates what happens to your property after your death. In a trust you can direct your trustee to use the trust funds to provide you with as much comfort and care as possible and leave whatever is left to charity. In terms of financial planning, you may be a good candidate for an annuity that would guarantee you an income for the rest of your life, but not leave anything at your death.

While each state has its own deadline, three years is far too long in every state. You can go to court to either force your sister to get moving or to have her removed as personal representative and have the court appoint someone else who will move the process along.

We’ve all seen movies where all the family members show up at an attorney’s office for the will to be revealed and read out loud. That actually rarely happens. Instead, family members are generally simply provided with copies of the will and related documents, such as trusts. But do they have the right to such documents? Yes, in the case of the will because it must be filed with the appropriate probate court. The personal representative does not have to provide a copy (unless required by the laws of the specific state), but it is a public record that anyone can look at. But the answer is usually no in the case of trusts. They are private and only need to be provided to beneficiaries, not to anyone who is not a beneficiary.

Just because you are named as executor in a will does not mean you are required to serve as an executor. If your mother-in-law is still alive, you can inform her you no longer want the position, and she will need to amend her will to name a different executor. If she has already passed away, you can inform the successor executor, if there is one, or the court that you do not want to serve in this capacity. If the will is already being probated, you will need to formally resign in writing in the probate court and provide a written accounting of what you have done. If the will does not name a successor executor, the probate court will choose an executor after you resign. State law dictates who has priority to serve. The surviving spouse usually has first priority, followed by children. If there is no spouse or children, then other family members may be chosen. If more than one person has priority and the heirs can’t agree on who should serve, then the court will choose.

If the house is sold, the proceeds should be divided three ways with your mother receiving a third. This is also true of any rental income. A key issue after your mother’s death is whether she, your sister, and your brother-in-law own the property as joint tenants or as tenants in common. If they own it as joint tenants, upon your mother’s death her interest will automatically disappear and your sister and brother-in-law will be the sole owners. If they own it as tenants-in-common, your mother’s one-third interest will pass to her estate and will be distributed according to her will, or if none, equally to her children. Whatever the ownership interest, your sister and brother-in-law can still distribute the proceeds according to the original agreement, but with nothing in writing that agreement is probably not legally enforceable.