Tag Archives: Will

Can You Probate a Lost Will?

LWT March 2015

I once had a client whose husband had died many years previous, leaving a will in which he left all his property to her. The will had been prepared by a local attorney who later retired, and had died by the time the client retained me. The client had furnished a copy of the will to her accountant, who used it to prepare an estate tax return. However, the accountant only had a copy of the first few pages of the will, not including the signature pages. The client evidently lost the original will and could not locate a copy of it. All we had to go on was the copy of a portion of the will that the accountant had. I did my best to track down the original will or a copy. The drafting attorney was deceased and although I located his former secretary, she indicated that his files had not been retained; the will would have gone back to the client. In short, there was no extant copy of the full will.

Can you probate a lost will? In some instances, yes. If a will is lost by accident after the decedent’s death, or destroyed by fraud during the decedent’s lifetime and without his or her knowledge, a court may receive evidence of the execution and validity of the will. A lost will would have to be proved in the same way as other wills; the persons who witnessed the testator sign the will would have to testify to that fact. This may not be difficult if you know who the witnesses were and can locate them. Often the witnesses of a will are law office personnel. Most law office personnel who witness wills do so often enough that they would not be able to recall a particular instance; especially not where the will had been signed many years prior. If you can locate the witnesses and they remember the will, then the proponent of a lost will has to show that it is more likely than not that the will in question was never revoked by the testator; if no one objects, the court may admit it to probate. In the case of my client, we didn’t know who had witnessed the will because we did not have the signature pages or the pages signed by the witnesses. Without that, we could not offer the lost will for probate.

Lessons learned? Make sure your original will, and your spouse’s original will, are kept in a secure, fire safe location and that the location is known to those who will handle your estate at your death. Often an attorney’s office will store the original will in a vault. If your attorney retires and returns the original to you, put it in another safe place, such as a safe deposit box. Better yet, go to another attorney and see if the will needs updating; the new attorney may have a vault where the will and codicil could be stored. Make sure to keep full copies of the executed will. Finally, keep the original will and copies after the testator dies, even if you do not think there are any assets to probate at his or her death. This is critical! In the case of my client, her husband had died 20 years prior and she thought all assets were in joint tenancy at their death. It was only in refinancing some property that she discovered this was not the case.

If you have questions or concerns about lost wills or the proper care of original estate planning documents, consult with a qualified estate attorney.

Facebook Beneficiary Designations

World Wide Web

When was your last Facebook post?  Maybe more importantly, when did you update your Facebook beneficiary designation? Facebook, the world’s most popular social network, recently changed its policy to allow users to designate a “legacy contact.” The legacy contact will be permitted to manage portions of the users’ account posthumously.

Facebook initially froze deceased users’ accounts upon receiving notice of the death.  This original, hard-line policy angered many users’ family members, heirs and other users who wanted to edit the deceased’s account or provide information to friends.  Google, traditionally at the forefront, became the first Internet company to permit users to select digital heir for its Gmail email service and other services.  Facebook has followed Google’s lead and finally welcomed legacy contacts.

The legacy contacts will be able to post to users’ pages, change the profile picture, and even respond to friend requests.  There are numerous settings and levels of permission which can be granted, including access to the decedents’ posts and photos. The legacy contact cannot edit the decedent’s posts or what his or her friends post.  The legacy contact will not have access to the decedent’s messages nor will the contact be allowed to delete the account.  Facebook users may still choose to have their entire account deleted at death.

To designate your legacy contact, go to ‘Settings’ and selected ‘Security’ and then click ‘Legacy Contact’ at the bottom of the page.  From there you can designate an existing Facebook friend and give that friend permission to download an archive of your data or choose to have your account deleted at death.  As with most initial policies, Facebook’s current offerings are not optimal.  You must name an existing Facebook user and you can only select one legacy contact.  So spouses who travel extensively together may consider naming another individual. If you do not name a legacy contact, Facebook will honor digital designations made in a traditional, legal will.  For assistance with these and any other beneficiary designations, please contact our experienced estate planning attorneys.

Who Gets Your Property if You Die Without a Will?

natasha_fatalle___boris_badenov[1]

In my last installment (Who Is Qualified to Serve as Administrator of an Estate?), I wrote about Boris and Natasha and the Big Fight occasioned by Boris dying without a will. As you may recall, Boris had two adult children from a prior marriage when he married Natasha. He and Natasha had two children before Boris died without a will. His property was substantial and all of it was acquired prior to his marriage. What happened to the property on his death?

The good news is that no one was disinherited, and the property did not escheat to the state. Nevada law provides for property to go to your closest relatives if you die without any estate planning in place. In a community property state such as Nevada, a married person’s property may be either community or separate, or some combination of the two. Separate property is property acquired before marriage, as well as property acquired by gift or inheritance during marriage. All property earned during marriage, or purchased with earnings during marriage, is community property. These characterizations can be changed by a written agreement if the couple wishes.

For Boris and Natasha, all of Boris’s property was separate property and he left no will. Nevada law provides that in such case, the surviving spouse is entitled to one third of the separate property, and—because he had more than one surviving child—the children were entitled to equal shares of the remaining two-thirds. Boris did not put any of his assets into joint tenancy with Natasha, but if he had, Natasha would have succeeded to such assets. Once the estate administration finished, Natasha received one-third of Boris’s assets; the couple’s minor children received one-third subject to a guardianship or trust until they became adults; and Boris’s two adult children received the remaining one-third in equal shares.

Who Is Qualified to Serve as Administrator of an Estate?

Treasure Chest

Some years ago a wealthy older man I’ll call “Boris” got married to a foreign national half his age. Boris was a Nevada resident. He brought “Natasha” to the U.S. after their marriage. She was intelligent but did not speak English well and was unfamiliar with American culture and basic business practices. Boris had two adult children from a prior marriage who both lived out of state. Three years after his marriage to Natasha, Boris died without any estate planning in place. At his death, who was qualified to be the administrator of his estate?

If Boris had made a will, he could have nominated whomever he wanted to act as executor of his estate. (As a note on vocabulary, the term “executor” refers to someone nominated in a will, whereas the term “administrator” refers to someone appointed by the court in a situation where there is no will.) If a Nevada resident dies without a will, that person’s estate may be administered by a qualified person. The Nevada probate code sets forth the priority in which the court will consider candidates; a surviving spouse has first priority, and a child (18 or older) has second priority.

Need I say that Boris’s adult children did not get along with Natasha all that well? They did not trust her at all, and they believed she did not speak English well enough nor understand basic survival skills nor basic obligations (e.g. that Boris’s death did not mean his bills didn’t have to be paid) to be the administrator of their father’s estate.

What qualifies someone to act as the administrator of an estate where there is no will? An administrator must be at least age 18 and not convicted of a felony, unless the court determines that such a conviction should not disqualify the person. Someone will be disqualified if upon proof, he or she is adjudged by the court to be disqualified by reason of conflict of interest, drunkenness, improvidence, or lack of integrity or understanding. Finally, the person must either be a Nevada resident or must associate as a co-administrator with someone who is a Nevada resident.

Boris’s children had two impediments to petitioning for appointment of themselves as administrator: they were not Nevada residents and they did not have priority over Natasha because she was Boris’s surviving spouse. In order to prevent Natasha from serving as administrator of the estate, it was necessary for them to prove in court that Natasha was disqualified by reason of improvidence or lack of integrity or understanding. In the end, however, neither Natasha nor the children were appointed administrator. Instead, Natasha invoked a statute that allowed her, as the person with first priority, to nominate someone else to act as administrator—and she nominated a local accountant who was perfectly qualified and did a great job.

Lesson learned? Do some estate planning—preferably while you are still well enough to think clearly and act independently. Choose a personal representative who is both competent and trustworthy. Boris could have avoided a fight among his relatives by executing a will naming someone to act as executor of his estate, and he could have better provided for disposition of his assets—which were significant.

You may be wondering what happened to Boris’s estate—who was entitled to receive his property? Stay tuned for the next installment of As the Probate World Turns.

Heggstad Petitions in Nevada: Or, How to Bypass Probate and Get an Asset into a Trust after Death

Washoe Co. Court House

It is unfortunately all too common that clients who set up a trust forget to transfer one or more assets into the trust; or they purchase a new home or other asset, and do not title it in the trust. In some cases, it is possible to avoid having to probate assets omitted from the trust if you can prove that the deceased intended to include that asset in his trust. In Nevada, this can be accomplished by way of filing a Heggstad petition with the probate court.

The name of the petition comes from a 1993 California case, In Re Estate of Heggstad, in which Mr. Heggstad created a trust but failed to execute the necessary paperwork to transfer his interest in certain real property into his trust. The successor trustee argued that Mr. Heggstad had intended that the asset be transferred to the trust by the fact that it was included in the schedule of assets attached to the trust. The court agreed, finding that that a written declaration of trust by the owner of real property, in which he names himself trustee, is sufficient to create a trust in that property; the law does not require a separate deed transferring the property to the trust.

In Nevada, the Heggstad case is not binding law, but a Heggstad type petition is provided for in the probate code, which allows a trustee or other interested person to petition the court to enter an order if the trustee has a claim to property and another holds title to or is in possession of the property. Pursuant to Nevada law, an omitted asset can be placed into the trust without a probate proceeding.

Under what circumstances will this be successful? You have to prove that the asset was intended to be in the trust. Inclusion of the asset on the schedule of assets was deemed sufficient in the Heggstad case. Another possibility is to show that the asset was in the trust but was inadvertently removed for some reason; for example, you had a bank account at First Bank titled in your trust and closed it and opened a new account with the money at Second Bank, but forgot to open the new account in the name of the trust. Each situation is different, but a knowledgeable probate attorney can help you evaluate your case.

In order to put the asset back in the trust, it is necessary to prepare and file a petition in the appropriate district court. The petition is set for a hearing and if approved, the court will issue an order transferring the assets into the trust without any further proceedings. This is a huge advantage over opening a probate estate as it cuts down significantly on the time required and on fees and costs.

Contact Woodburn and Wedge with your trust and estate issues. We can help you evaluate whether a Heggstad petition would work for your situation or whether another procedure is appropriate.