Good estate planning requires you to update your will to make sure your wishes are met and your heirs aren’t left wondering whether your wishes were satisfied.
Q: Our mother passed away quite suddenly. She had her old will out on her table as if she were going to update it.
The will that we think is her latest will is from 1999 and we are unsure what to do. We started dividing up property but are now finding that the courts should have been involved through probate. I heard you talking on one of your radio shows and you spoke of a book that helps you deal with this issue and what to expect.
A: We are sorry for your loss. For starters, if your mother had a will and that is the only legal will, it does not matter what year it is from and whether you think she might have wanted to update it. The only relevant matter is that the will exists and that the will was of a time when she was of sound mind. If the will was valid then, it should be valid now.
If your mother had assets, you will need to follow her wishes as they were expressed in the will. So, if she wanted Suzie to get the house and Joey to get her car, you have to divide the property in that manner.
If you and your siblings and others have other wishes for her property, once the will has been probated, nothing prohibits you and others from working together to decide what to do. So if Suzie and Joey want to sell both assets and share the money equally, they can.
But this is why it’s so important to make a will and to keep it updated as things change in your life: births, deaths, marriages, divorces, and children. Things happen, and life changes, and your documentation needs to change as well. Good estate planning is essential for the transfer of property the way a person wishes.
Can you do this yourself or get personal finance advice elsewhere? It depends on where you live, and how many assets you have. There are many self help books (Ilyce is fond of the books from Nolo Press) that can help you deal with your estate issues.
Depending on where you live, what property is at stake and the size of your mother’s estate, you may be able to probate her will yourself. You may want the experience and help of an attorney to work with you during the process and can interview various estate attorneys to see what they would charge you for their services.
But it’s unlikely that you can ignore the wishes in the will even when that will is a dozen or more years old.
If your mother had bank accounts in her own name, stocks in her own name, a home and other assets, the institutions holding those assets won’t release the money, stock or assets without knowing that they are doing the right thing. If a will exists, you need to go to court, have an executor of the will appointed or approved by the court, then that executor can use the powers given to him or her by the court to instruct the institutions to distribute and pay out funds as set forth in the will.
By following the will and with the supervision of the court, matters of the estate can be settled and usually the court will require an accounting from the executor to see what the assets of the estate were and where they went.