While trying to advise a woman who is the only child and heir of her unmarried father who will not meet with an Estate Attorney, a number of issues have come up.
He keeps telling her “I put a note with the item which says you get it. That means it automatically goes to you”. This is a common mistake made. He is only insuring that his assets go through Probate Court. In addition, the written “note” may have no legal effect at all.
What you own, or your assets, move by “Title”. How is your asset titled? Is it titled in your name? Is it titled jointly with another person? Is the account “Payable on Death” or “Transfer on Death”? Is there a Death Beneficiary on the Life Insurance or Retirement Account or other investment?
Assets will move by title. If it is titled in the Decedent’s name alone it will go through Probate Court. If there is a valid Will it will move under the terms of the Will. If there is NOT a Will then it will go by State Law, which can be different in each State.
The best option is to have a Living Trust, aka Revocable Living Trust, aka Family Trust and have the assets titled into the Trust. That way it will skip the delay, publicity and costs of Probate Court. If you are not going to do a Living Trust and retitle your assets to the Living Trust, then there should be at least a valid Will. This needs to be done by an attorney licensed in that State who limits their practice to Estate Planning. That way the asset will properly go to the person whom the deceased wanted it to go to.
Even if you have a Will, however, the Death Beneficiary will override the Will on a Retirement Account, IRA, Life Insurance, accounts that are “Payable on Death” or “Transfer on Death”, or other assets that move by Death Beneficiary. The Death Beneficiary Designation overrides the Will.
Do not rely on your elderly parent, especially one that is with onset dementia, who says “Don’t worry, I put a note with the item that says you get it”.
At the Law Firm of Steven Andrew Jackson, Attorney and Counsellor at Law, we have helped hundreds of families protect themselves and their loved ones, avoid Estate Taxes and Probate Costs, and keep their Estate Plans current with the law through The Customized Protective Estate Planning Solution™.