The Language of Probate

Attorneys are often stereotyped as using a lot of legal jargon. For the most part this is true, but the law does require specific forms of language. In the area of probate law, the use of legal terms is especially prevalent. In order to clear up some of the difficult language, here are a few common terms used in probate and their definition in plain English:

Will
A will is a formal document expressing a person's desires for the distribution of his or her property upon death. Every state in the U.S. has statutes defining what is and what is not a legal will.

Testate
When a person dies having a valid will, they are said to die testate. A person making a will is often called a testator or testatrix (female).

Intestate
If a person does not have a valid will upon death, they are said to have died intestate.

Personal Representative
Formerly called the Executor of a will, most jurisdictions now call this person a personal representative of the estate.

Estate
All of the property, both real property and personal property, owned by a person.

Beneficiary
A person who receives property under a will, an insurance policy, a trust or other type of distribution from an estate.

Bequest
A gift given in a will of personal property.

We will visit this topic again in the future. If you need more information please go to the Jackson White Website.

Special needs need a special needs trust

As a young man, Norwood had been involved in a serious automobile accident. Unfortunately, he wasn't wearing a seat belt and was thrown from the car, suffering severe injuries to his head and neck. He never fully recovered. His mother, who was a widow and a saint, cared for him night and day for twenty-five years, but finally her health failed. Norwood had not received any kind of huge settlement from an insurance company, but his parents were well-off and he was well cared for.

With the failure of his mother's health, he had no one to care for him. He could not communicate hardly at all and spent his days watching TV or sitting in the garden. Unfortunately, he needed to be placed in a care center, where there was 24 hour care. Since he was an only child, there was no one left in his family who could help. His mother's failing health took all of the resources of the family and soon, Norwood was entirely dependent on public assistance through Medicaid.

Unfortunately, when his mother died, she left no will and no trust, Norwood inherited all of her substantial property. There was just one problem, all of the property was in real estate. He had no income, but because of his newly inherited wealth, he now did not qualify for Medicaid support. Norwood almost died before this legal tangle was unraveled.

How could things have been different? Norwood's mother could have created a special needs trust for Norwood. She could have also had a pour-over will, putting any and all property she had at the time of her death into the trust. Life would have been considerably different for Norwood at the time of his mother's death.

You may wish to read more at the Jackson White Website. Although this case study is fictional, the situations are real.

Can I handwrite my own will?

In classic television drama style, Maude hand wrote her own will. She also decided to change the will from time to time and left various copies of her handwritten wishes around her very messy apartment. When she died, Sylvia, her daughter came from out of state and began going through her piles of papers. By the time Silvia went to the attorneys' office, she had found six copies of the will, none of which were dated.

Life has no guarantees, but one way to avoid a family fight is to have an adequate will. Although most jurisdictions recognize a handwritten (holographic) will, even a will written entirely in the handwriting of the deceased may be suspect and cause a disagreement among family members especially if there are various copies of the will with either no date or different dates.

A holographic or handwritten will is valid in Arizona, if the material provisions are in the handwriting of the testator (person making the will). Sylvia, her attorney and the Court may be able to figure out which of the handwritten wills was the last one, but absent some specific language revoking the prior wills, there may be a problem deciding which of the various changes and provisions were the last will of the deceased.

A tangled affair

Dear EPL Transitions,

When I was eight years old and my sister was six, our mother died. She had been sick for years, and we had been living with my mother's parents. Grandma and Grandpa were like our real parents. They helped us with our school, attended all of our concerts and plays and treated us like their own. My father remarried and moved out of state. My Grandma had arthritis and got progressively worse as the years rolled by. About the time my sister graduated from high school, my Grandmother could no longer walk and was confined to a wheel chair. Grandpa tried to take care of her, but it got too much for him and he finally suffered a heart attack and died. I moved back home to take care of Grandma.

Last month, I heard that my father had died. His wife, our stepmother, had also died last year. His wife had Alzheimer's and had fallen and broken her hip. She never recovered. My father was a stock broker and had a rather large portfolio of stocks and some bonds. I don't know if our father had a will or not, but we got a call from my Dad's sister telling me about the stocks and claiming that there was no will. What should I do? My father died in Arizona and my mother died in California.

I can't leave my Grandmother alone for any length of time. What do you think I should do?

Undecided in Arizona

Dear Undecided,

Probate is the process of administering an estate to distribute the assets to the heirs. You certainly need to get more information and find out if your father left a will. Although I cannot give you legal advice in a column like this, you do need to consult a qualified attorney in Arizona about your father's estate. Although you may have to travel to Arizona, you can still act as Personal Representative while living outside the state.

The wages of demetia

Wendy's father had Alzheimer's and Parkinson's Disease. He was a difficult patient and had been forced to move from care center to care center. In one case, he had hit the care giver breaking her arm. In another, he had violently pulled open a door and knocked himself unconscious. Wendy was getting emotionally and financially exhausted. She dreaded calls from the care center, especially when they asked for staffing meetings. She was sure she would have to move her father again and she was running out of resources.

Her father's finances were in shambles. As he got progressively more disabled, he had written checks to pay non-existent bills, given money to every charity that sent him an invoice and forgotten to pay utilities and other necessary expenses. Wendy could not handle the situation and her brother, Sam, who lived in Texas, was no help. He blamed her for the whole situation. He would come and visit their father and then claim that there was nothing wrong with him and that Wendy was making all of this up.

In desperation, Wendy turned to her Aunt, her father's sister. Maureen had never been friendly with Wendy, ever since Wendy's mother had died and her father had remarried. Since her step-mother had died, Wendy had not gotten along well with Maureen, but Maureen was an accountant and said she could help straighten things out.

As her father got progressively worse, Sam became even more of a problem. He lost his job in Texas and announced that he was moving back to live in his father's house. Within days, he had moved in and shortly, told Wendy that his father had a Trust and that he, Sam, was now the trustee. Just after Sam moved into the house, Wendy's father died.

Although this fact situation is not real, the circumstances set forth certainly could be. These same type of problems occur almost every day. If you face these types of problems, you may wish to seek legal advice.

A trial of the wills

Sam lived alone in his small motor home in Apache Junction during the winter months. Each year in April, he would pack up his motor home and drive to his family farm in Idaho. Sam's wife had died years before and they could never have any children, but he loved to visit with his younger nieces and nephews. His brother owned the farm and although both of them were getting older, they enjoyed the family atmosphere of the farming community.

When the weather changed and the leaves had all turned, Sam packed up and left for the warm climate of Arizona. There was quite a little community living there at the RV Resort and Sam had made several friends. Norma and Bill were especially interested in Sam and his well being. They made a special effort to make friends with him. That winter, Sam had a mild heart attack and his health began to fail rapidly. He became despondent and dysfunctional.

Meanwhile, Norma and Bill became Sam's best friends. They took him to the store when he needed to go and helped him clean up around the house. When Sam suffered another heart attack, Norma went with Sam to the hospital and visited him every day. As his condition became worse, Norma and Bill started to tell Sam that he needed to "get his affairs in order." As Sam became more and more despondent, they finally took him to an attorney's office and told the attorney that Sam wanted a Will. Sam was in extreme physical distress but could still communicate. Norma and Bill told Sam that he should leave them his estate, because, after all, they had taken care of him. Sam protested that he ought to leave something to his brother and his brother's children. Norma pointed out that none of them had come to help him and that she an Bill were always there for him. Not feeling well enough to protest, Sam agreed and the lawyer had him sign a will leaving his entire estate to Norma and Bill.

If Sam had felt better and not been so sick, he would have noticed that Norma and Bill were intercepting all of his mail from his family. He may also have noticed that his phone was not working courtesy of Norma and Bill.

Sam's brother and his family were shocked when Sam died. They rushed down to Arizona for the funeral only to find out that everything Sam owned had been taken by Norma and Bill. The couple had filed the probate on Sam's will within the statutory five days of his death.

Unfortunately, this story is repeated all across America. Norma and Bill make a good living taking care of their older neighbors and then convincing the neighbors to make a will or change one to leave everything to Norma and Bill. They generally look for old people in poor health who do not appear to have a family close by.

A Will is not something to do when you are old and vulnerable. You need to take care of your affairs now.