Benefits of Establishing a Testamentary Trust

A trust involves placing legal title with one person or institution for the benefit of one or more beneficiaries. It can be revocable and changeable, or it can be irrevocable. The person creating the trust is usually referred to as the trustor or settlor. The trustee is the person or entity selected to take legal title and administer the trust assets.

 

Trusts are often an important part of estate planning. Most estate planning trusts do not become effective or funded until the person creating the trust dies. If established by the person’s last will and testament, the trust does not even come into existence until the person dies. When the trust is established by a will, it is termed a testamentary trust. The remainder of this article we will discuss some of the uses for testamentary trusts.

 

Believe it or not, some families have what could be affectionately termed a “black sheep.” This person is not good with money, addicted to gambling, alcohol or drugs, frequently married and divorced or just not good with finances. If the black sheep is a beneficiary of the will, he or she may spend or lose their inheritance quickly.

 

Instead of giving the black sheep an inheritance, his or her portion can be left to a trustee in trust. Terms of the trust can provide for distribution of income, payment of medical bills, rent, emergency expenses and such other items as the person creating the trust deems appropriate. The trust can also include provisions prohibiting assignment by the beneficiary and prohibiting attachment by creditors of the beneficiary.

 

Protection from creditors is done by including a “spend thrift” provision. This provision prohibits assignment or anticipation by the beneficiary, which means a creditor cannot reach the beneficiaries interest in the trust. This feature can be attractive even where a black sheep is not involved, as the funds in the trust can provide a safety net for the beneficiary, free from unforeseen creditors. I frequently refer to the unexpected car accident as creating an unforeseen creditor.

 

Trusts are often used to provide for minor children. Funds are placed in trust until such time as the beneficiary, or beneficiaries, attain a certain age. Funds in the trust can be used for the health, welfare and education of the beneficiary, with the remaining assets not distributed until the minor has reached the age that the person creating the trust felt would be sufficiently mature to deal with a large financial gift.

 

Grandparents often create educational trusts for grandchildren. Such trusts usually limit use of the monies to post high school education and provide for final distribution of any remaining funds at the time the beneficiary reaches a certain age.

 

Estate tax savings may also be realized by creating what is known as a credit shelter trust in the will. Under current estate tax law, each person may give two million ($2,000,000) dollars to beneficiaries other than the person’s spouse, free of estate tax. There is generally no estate tax due on a gift to a spouse. However, when the spouse dies, the spouse will be limited to the two million ($2,000,000) dollar exemption from estate tax when assets pass to children, grandchildren or others. The IRS allows tax payers to have most of their cake and eat it too, if a credit shelter trust is utilized.

 

A maximally funded credit shelter trust will involve a decedent leaving two million ($2,000,000) dollars in trust when he or she dies. In simplest terms, the income from the trust can be automatically paid to the surviving spouse and the trustee can have power to invade principal if needed by the surviving spouse. Assets in the trust when the surviving spouse dies pass to children, grandchildren or others free of estate tax, so that the ability of both spouses to give two million ($2,000,000.00) dollars at death free of estate tax is preserved. Better yet, if the credit shelter trust assets increase in value between death of the first spouse and final distribution, that increase also escapes estate tax. Since the estate tax rate on the non-exempt portion of an estate is 49 percent, fully funding the credit shelter trust can save $780,800 dollars in taxes.

 

Even without tax savings, a trust might be created for benefit of a surviving spouse. This is often done in a second marriage situation, where the first spouse to die sets up a trust for benefit of the surviving spouse. At death of the surviving spouse, the assets remaining in the trust are distributed to children from a previous marriage.

 

A trust is a flexible instrument that can be applied to almost any situation. Creating a trust should be discussed with your estate planning attorney.

 

Source:  William G. Morris, Esq., MarcoNews 

Divorce Planning Tip

Many individuals planning for a divorce, or going through a divorce, or who have already divorced overlook the fact they have executed estate planning documents naming their (former) spouse as beneficiary, decision maker, health care representative, etc.  Please be sure to change these documents ASAP to avoid having your (former) spouse making these decisions or receiving benefits you no longer wish them to have (life insurance proceeds for example).

Talk to your family law attorney about taking care of this important issue.  If your family law attorney does not prepare these types of documents, he/she knows someone who does.

Probate Formal Administration

This week, I will walk us through the steps necessary to open and eventually close a formal administration of probate. I will attempt to offer a simplified explanation of the probate process, keeping in mind that West’s 2008 Probate Code and related laws and court rules are over 850 pages, plus an index of 160 pages.

 

If the decedent’s assets do not qualify for summary administration, or the will directs formal administration, or there are issues such as keeping the homestead free from creditor’s claims, elective share issues, federal estate tax obligations, then the attorney will have to commence formal administration for large estates. Formal administration may also be necessary where a life insurance product names the estate as beneficiary or where assets cannot be located and banks require the letters of administration issued in formal administration in order to avoid a confidentiality issue for their deceased client.

 

Commencement of the estate is done by the attorney preparing a petition for administration, which is filed with the probate court in the county of the decedent’s death, together with a certified short form death certificate. The long form can be purchased when a life insurance company, for example, requires the form to list the cause of death. Cause of death is normally nobody’s business, but may be grounds for the insurance company to contest payment of the claim.

 

The petition, among other things, must inform the court of the decedent’s death, the decedent’s residence at the date of death, even though he may have died elsewhere on vacation, and Social Security number, and lists his spouse, if any, and his next of kin. It also states the name of the person nominated as personal representative, if qualified, and a list of assets or general nature of the assets, and whether a federal estate tax return will have to be filed. Tax matters at death are so complicated that I decided to devote next week’s article to that.

 

The attorney must also prepare an oath of personal representative to promise the court that the nominee will diligently and faithfully administer the estate. The oath, signed before a notary, must include a designation of resident agent, who must be a resident of the county where the estate is pending. The agent, who is typically the attorney for the estate must sign accepting this designation. Anyone suing the personal representative, either in its representative capacity or in his individual capacity, for claims arising out of the estate, may serve papers on the attorney as agent for service of process.

 

Once all papers, together with suggested orders prepared by the attorney for the judge’s signature, and together with a court filing fee of approximately $285, are submitted to the clerk of the probate court, the judge will review the file and may request a hearing. If everything is in order, the judge will sign the Letters of Administration, of which the attorney will purchase, from the clerk, multiple certified copies. The court may require a surety bond be purchased from an insurance company in an amount the judge deems fit, which the attorney must arrange. Sometimes the attorney can obtain the waiving of the bond, but the bond is a good protection so that the estate will be reimbursed by the insurance company if the personal representative does not do the right thing.

 

Often, the relatives are told by the bank all they need to cash out the account is a letter of administration, but understanding the whole process shows it is not that simple. The Letter of Administration is a form prepared by the attorney that orders and authorizes any person with assets or financial information to deliver that information and those assets to the personal representative to be held and administered according to the will. The personal representative now has court authorization to find assets and locate creditors and take other appropriate action to fully administer the estate.

 

The attorney will then arrange a notice to creditors to be published in an appropriate local newspaper once a week for two consecutive weeks. This notice should also be served on known creditors. The notice also sets a time limit of 30 days after the date of service on the creditor and 90 days from date of first publication of the notice, unless claims are barred because the decedent has been dead for two years. The attorney for the estate has a duty to creditors according to the U.S. Supreme Court and must carefully keep track of these many time limits. After letters of administration are issued, the attorney will prepare a Notice of Administration to be served on beneficiaries and interested parties. This notice gives time limits to any person who objects to the validity of the will or the person nominated as personal representative to file their claim with the probate court, with copy to the attorney.

 

The rules contain a specific procedure and time limits for creditors to make their claims. If the estate disputes the claim, the attorney may prepare an objection to the claim within 30 days and the creditor must then file an independent lawsuit to collect the claim within 30 days unless a written motion for extension has been filed with the clerk and copy served on the creditor. There is also a procedural requirement to notify the Florida Department of Revenue, in case it has a claim for back taxes. If the decedent is over age 55, there is a procedure to notify the group which administers the Florida estate recovery program for Medicaid.

 

There are deadlines for inventories of the estate to be filed and on whom copies must be served. There are also forms, procedures, and time limits for the personal representative to file accountings of the estate’s property and income during the period of administration. Finally, to close the estate, the personal representative must seek an order of discharge after properly investing the estate, making distributions called for in the will and obtaining the consents of the beneficiaries or holding a hearing on the petition for discharge. The estate may be further complicated by problems with the elective share of the surviving spouse, the collection of sufficient assets from the trust to pay all creditors and obligations of the estate, Medicaid recovery issues, cash security, Medicare, determination of exempt assets, the fighting among beneficiaries that is quite common, Blue Cross/Blue Shield, convenience accounts set up as paid on death transfers, joint property issues and a whole host of other unforeseen problems.

 

The attorney and the personal representative should not be expected to handle these matters, which involve significant responsibility and personal liability, for free. Fortunately, Florida statute sets some guidelines for payment of fees, which will be discussed next week, along with the very complicated tax issues that face the attorney and the personal representative.

 

Source:  William Edy, Fort Myers News-Press

Probate Summary Administration

When an individual dies owning assets that must be probated in order to change title to the beneficiaries or to make distributions to the beneficiaries, the attorney handling the probate process will have to decide whether the estate must utilize formal administration, or whether the estate qualifies for one of the simpler forms of informal administration for small estates.

 

 

The summary administration is commenced by the filing of a petition for summary administration, which must list the beneficiaries, the assets subject to probate, and all known creditors. The petition must be signed by a licensed Florida attorney. In a testate estate, the petition must also be signed by the surviving spouse, if any, and all beneficiaries of the estate. If there was no will, the petition must be signed by the attorney, the surviving spouse and all heirs at law. If the petition is not signed by a beneficiary who will receive their full share, the beneficiary must receive a formal notice of a hearing on the petition. Those signing the petition do so under penalty of perjury. Any omitted beneficiary or creditor of the estate may recover attorney’s fees for enforcing their rights.

 

To qualify for summary administration, the estate subject to probate must be under $75,000, excluding exempt property, or the decedent must have been dead for more than the two years that creditor claims can be made. If summary administration is allowed, it saves having to appoint a personal representative and saves the expense of posting a surety bond. If a decedent of any size estate is survived by a spouse or child, exempt property includes the homestead and the automobile and up to $10,000 in household furnishings and certain other benefits, all of which will not count in the $75,000 limit.

 

It is important to review the title to all of the assets of the decedent to determine which assets count as probate assets. Probate assets will not include, for example, tenancy by the entirety property owned by husband and wife that will automatically pass to the surviving spouse. It does not include property owned by joint tenants with right of survivorship that will pass to the surviving owner. Probate assets do not include assets that have a beneficiary designation, such as paid, or transfer, on death designation. It does not include assets that are owned by the trustee of a trust, unpaid wages, unemployment compensation and other benefits.

 

It is entirely possible that a millionaire could plan to avoid probate with a trust and beneficiary designations, but find after death that an account or vacant lot purchased for investment was titled by mistake in the decedent’s name, which would require probate to transfer title to the trust or beneficiaries. If the assets requiring probate are valued at less than $75,000, summary administration may be available, unless the will states that formal administration is required. If the surviving spouse is omitted from the will or given less than 30 percent of the elective share estate, it may be necessary to apply for formal administration to seek the determination of the amount the surviving spouse is entitled to receive from the probate assets and to seek non-probate assets to fully fund the spouse’s entitlement. Formal may also be required when a life insurance company requires, or where there is pending litigation, such as for wrongful death or malpractice, that requires a personal representative to conduct.

 

If the decedent owned real estate in another state, that property would not be a probate asset in Florida. Only that state can transfer title to that property. The filing of probate in both estates could be required. If the real property in the other states was transferred to a revocable trust prior to death, probate in either state could be avoided.

 

If summary administration is filed, the petition must state that either there are no creditors or the payment of creditors have been provided for, unless claims have been barred by the two year non-claim statute. If claims are asserted after the assets have been distributed to the beneficiaries, those beneficiaries are liable for their pro-rated share of the claim, up to the value of the asset they received.

 

After the judge reviews the petition, or after the court has held a hearing, the judge will sign an order, prepared by the attorney signing the petition, that orders the distribution to the proper beneficiaries. A certified copy of the order presented to the financial institution will secure the transfer of that asset to the persons named in the order. The order will be filed where deeds are filed to act as a deed of the property to those designated in the order.

 

Summary administration is available to both the assets of a Florida resident and to the assets located in Florida belonging to a non-resident. The statute provides for the method to admit foreign wills to probate and the steps required to authorize a foreign personal representative to administer estates. If a decedent owns real property in other states, an attorney in those states must be hired by the Florida attorney to handle the out-of-state property, since the rules of probate differ greatly among the states. Dying with real property located in many different states can become very expensive, unless the property is owned by an LLC which converts the decedent’s interest to personal property administered in Florida or the different properties have been transferred to a trust prior to death.

 

There are other forms of informal administration available for small estates in certain instances. Suppose a person receiving Medicaid nursing home benefits dies with $1,800 in a checking account, because his or her asset limit is $2,000. There is a procedure to obtain these funds to reimburse the relative who paid the cremation or funeral costs. Florida Statute 735.301 allows certain personal property to be distributed without formal administration or the involvement of an attorney or personal representative. It provides that when the only property subject to administration is personal property with a value that does not exceed the value of the preferred funeral expenses and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness, no administration is required.

 

I occasionally hear of situations when the decedent’s child who has paid the funeral bill, decides not to file probate to obtain these limited funds because Florida Statute sets the minimum attorney’s fees at $1,500. Perhaps during the initial free consultation that many attorneys offer, the adult child should be advised to write a letter or send an affidavit to the probate division of the clerk of court at the courthouse. The deputy clerk will assist with the paperwork and obtain from the judge a directive under the seal of the court authorizing the transfer, payment or disposition of the funds to the person who paid the expenses. The limit for this procedure is the total of funeral expenses and recent medical and hospital bills up to the value of the assets. Family often inquire whether, if they front funeral expenses, will they be reimbursed, even though the will gives the total estate to another person. The answer is yes if there are funds.

 

Often, the client has properly planned their estate through trusts and other probate avoidance strategies, only to find the automobile was held in the decedent’s name. Many insurance companies will not insure a car owned by a trust because they are basically insuring the driver and need to know the age of the driver. There exists a procedure for transferring title. FS 319.28(1)(b) makes it possible to secure transfer of motor vehicle title without probate.

 

If there is no will, an heir can sign an affidavit stating that the natural heirs have agreed to transfer the automobile to that individual and that the estate is not indebted. In a testate case, the affidavit must accompany the will and death certificate and be signed by the personal representative nominated in the will and state the estate is not indebted. Paperwork is submitted to the office where you change title to a car and they will effect the transfer, without the involvement of an attorney.

 

Florida Statute also has a method where the spouse or decedent’s children can obtain the income tax refund, provided the refund is under $2,500, if the application states that the decedent is not indebted or all assets are exempt from creditors.

 

It is important that soon after death, the family begins to work with a knowledgeable probate or elder law attorney to review the assets and receive information on these various methods of informal administration, some of which do not require retaining an attorney other than to make the family aware of their availability.

 

If the review indicates the assets do not qualify for summary administration or that there are issues such as homestead, elective share issues, of federal estate taxes possibly due, then the attorney will have to commence formal administration for large estates. Next week, I will walk us through the steps necessary to open and eventually close a formal administration. I will also discuss the fees and costs.

 

Source:  William Edy, Esq. in Fort Myers News-Press

How to Prove a Will in Florida

Mr William Edy has posted another extremely education article in the NewsPress about how to prove a will:

Last week, I mentioned that any document purporting to be a last will, or document attempting to make dispositions of a person’s property after his or her death, must be filed with the clerk of court within 10 days after receiving notice that the will-maker, called the “testator,” is dead. Even if they believe the will is invalid or fraudulent, Florida Statute requires that the custodian of the will deposit the will with the court for the proper county, where the probate judge will decide if it is valid and should be admitted to probate. Even if there are no assets in the probate estate, and even if no one intends to file a petition for administration, the custodian must still file the will with the court. Upon the filing of a petition for probate, the judge will decide if it is a valid will.

 

Florida Statute sets forth the requirements for a will to be valid. Any document which attempts to devise the property of a deceased person after his or her death must be executed or signed by the testator in the presence of two witnesses. No particular form of words is necessary to the validity of the will if it is executed with these formalities required by law. The proper execution of the will must be proven to the satisfaction of the probate judge. Probate comes from the Latin word meaning “to prove.”

 

There are three ways to prove the proper execution of the will. The first method is by the inclusion of an affidavit attached to the will, which is signed by the two witnesses stating that they signed their signatures above the affidavit in the presence of the testator, who also signed above the affidavit. This affidavit must be notarized by a notary public who takes this sworn statement from the witnesses and from the testator. The notary must state that the notary either knows the persons taking this oath personally or has seen acceptable identification. The suggested words for the affidavit are set forth in Florida Statute 732.503 entitled Self-proof of will.

 

Attorneys who prepare wills generally attach this self-proving affidavit to the will because it makes it much easier to commence the probate process. FS 733.201 states that self-proved wills may be admitted to probate without further proof.

 

If the will is not a self-proofing will, the second way to prove the will is by the oath of one of the witnesses. One of the witnesses will be required to sign an oath in front of the judge or deputy clerk of court or commissioner appointed by the court. A commissioner is a notary public that the judge appoints to take the witnesses’ oath based upon the request made by the filing of a written motion. A commissioner is generally used when the witnesses are not located in the same county.

 

The third way to prove the will is by the oath before the judge, clerk of court, or commissioner signed by the personal representative nominated by the will, whether or not the personal representative is named a beneficiary of the estate. If the personal representative nominated in the will is not available, then the oath may be signed by any person who is not interested in, or a beneficiary of, the estate. The oath must state that the will is believed to be the last will of the decedent.

 

Individuals moving to Florida often ask the Florida attorney if their will signed in their former state is valid. Florida Statute states that any will, other than a holographic or nuncupative will, executed by a nonresident of Florida is valid if the will would be valid in the state where the will was signed. If the will does not meet the Florida requirements it may become expensive to prove to the judge that the will would be valid in the other state unless it was already admitted to probate in that other state. A holographic will is a will written in the handwriting of the testator. A nuncupative will is an oral will.

 

Lowell Schoenfeld, a Florida board-certified wills, trusts and estates attorney, e-mailed me asking that I remind our readers that oral wills are not valid. Even written letters or statements from the decedent that, for example, one child is to receive an extra $50,000, if that document is not properly witnessed by two witnesses, will not be considered a valid will or even a valid codicil. A codicil is an amendment to a will. He indicated that he had three cases in one week where this issue arose. That oral statement or un-witnessed document will not be effective by the court to authorize the extra gift.

 

Florida Statute also provides that the testamentary aspects of a revocable trust, that is, those aspects which attempt to transfer interests to others after the death of the trust maker, must be executed with the same formalities of the will and may be proved in the same manner as a will. Recently, a client who executed a trust some time ago sent me a courtesy copy of an amendment to his trust to place in his file. I had to call him and inform him that the amendment was not valid because it was not properly executed, even though he had signed the document he prepared himself. Because not all states have this requirement, it is dangerous to use a form from a self-help book or off the Internet.

 

I believe it is improper for an attorney to do something to ensure he or she will be hired to complete the probate.

 

One way is for the attorney to designate himself or herself to be the personal representative, unless the client is a relative or the client has no other friend or relative to nominate.

 

Another way is for the attorney to retain the original of the will so the beneficiaries will have to come to the law office to obtain the original, at which time they will be pitched. Some attorneys do store the originals, but I believe it looks bad.

 

A third way attorneys used to ensure their hiring is to not prepare a self-proving will so the beneficiaries will have to hire that attorney who witnessed the signing of the will to go to court to sign the oath before the judge or clerk of court. Other than out-of-state wills, I do not often see this practice done by Florida attorneys.

 

If you have signed a will, you should have the original in a safe place and review it to ensure that it is a valid will. You should review it or ask an attorney to review it, every few years, especially if you have married, or have adopted, a child after signing the will, which is called “pretermitted.”

 

A pretermitted child has the right to receive the same share they would have received if the deceased died without a will, unless the will clearly indicates that the omission was intentional or unless the decedent is survived by at least one child which is not pretermitted and the will devises substantially all the assets to the spouse. If the deceased failed to marry the other parent of the pretermitted child, the child could inherit all of the estate and the other parent or siblings receive nothing.

 

A pretermitted spouse has the right to the same share they would have received if the decedent died intestate, unless the right to inherit is specifically waived in a prenuptial or postnuptial agreement, or the spouse is provided for, or the will evidences an intention to not make provision for the spouse. Even if the will omits the spouse or fails to give the spouse 30 percent outright, the spouse may elect to take a 30 percent elective share, which was the subject of an earlier article.

 

The elective share may be a problem if the surviving spouse is receiving Medicaid for nursing home expenses. The receipt of assets from the deceased spouse, or the right to receive them through the elective share, could cause loss of those benefits, unless a certain type of will is used by the community, or at-home, spouse.

 

Assuming the will is valid, the attorney handling the probate process will have to decide whether the estate must utilize formal administration, or whether the estate qualifies for one of the simpler administrations for small estates, which will be the subject of next week’s article.

 

Source

Your Will: Who can legally serve as your personal representative?

In a follow up post, the NewsPress posted the following about who can validly serve as your personal representative:

Last week, I discussed how, and to whom, your assets will be distributed to your family after you die as dictated by Florida Statute, in the event you have not signed a last will prior to your death. I indicated that having a valid will is greatly preferable to having no last will, although trust planning is generally even more preferable. Signing a last will generally ensures that your assets will be distributed to those beneficiaries you chose during your lifetime and that, under most circumstances, you can designate who will do the distributing.

 

 

Other advantages of dying with a last will rather than dying intestate include the possibility of requesting the court to waive the expense and hassle of having to buy a fidelity bond from an insurance company for the personal representative and your ability to make certain tax elections while living. This week, I will begin to review the general process of filing for probate with a last will. I will also mention the requirements for serving as personal representative. Our readers should realize that in some instances you cannot decide to whom all of your assets will be distributed, and you cannot decide who will do the distributing, even with a last will.

 

Some individuals are prohibited from serving as your personal representative, even if designated in the will or given preference under the Florida intestate statute. We have had occasions where a deceased person named his oldest son as personal representative, but when it was disclosed to the court by his disinherited daughter that the son had pleaded no contest to a felony DUI more than 12 years ago, with adjudication entered, the judge of the probate court was prohibited from appointing him and chose the daughter because her minor children were the majority beneficiaries.

 

It is not true the will signor can choose any person they like to serve. Some attorneys, and document preparation services, have the prospective client fill out an intake form from which the will is prepared and do not ask sufficient questions about each beneficiary, which unlearned clients often find intrusive.

 

If the will signor nominated a friend to be personal representative, the attorney should require his or her address and phone number. If the nominee is not related by blood, a person who does not reside in the state of Florida cannot serve as personal representative, even if he or she has no felony record. If you have designated a person who has subsequently moved out of state who is not a blood relative, you should consider signing a new will or codicil naming a Florida resident or blood relative.

 

If you have designated a person who now, not when the will was signed years ago, has been convicted of a felony anywhere, or is not mentally or physically able to perform the duties, or is under age 18 years of age, the person will not be appointed by the judge. Instead, the judge must appoint the alternate nominee in the will and if none, then the person who is listed as first in order of preference under the intestate law that governs persons who have died without a last will.

 

Even if the person who is a non-resident of this state, but promises the will-maker that he or she will move to Florida in order to administer the estate after his friend dies, that promise will not comply with the law. The friend must be a resident of this state at the death of the will-maker. The individual appointed must also be “sui juris,” which means a mentally competent adult, over age 18, who is presumed to be able to be bound by a contract. It is opposed to a person under age 18, legally called an infant and a person who is non compos mentis, or mentally incapacitated. In order to sue a person you must allege that the person is sui juris. The term comes from the latin term meaning “of one’s own right’ which means of full age and capacity. Although it is not impossible to sue a non-resident, it is more difficult and expensive for the estate to do so if an out-of-state person abused the position.

 

It is a good idea to ask a person who you have named, or are considering naming, to serve as personal representative, if he or she has ever been convicted of a felony and, if not a blood relative, if he or she intends to maintain residency in Florida. Also, if the friend or relative owes the deceased money, he or she may still be appointed, but the appointment will not extinguish the debt. If a person simply fails to disclose that he or she would not be qualified to serve and another person files to remove that person, the person who signed the oath of personal representative under oath and penalty of perjury will be liable for the attorney’s fees and costs, in addition to other damages in a removal action. If the person does meet these qualifications and desires to serve and is either next in line in the intestacy statute or clearly named in the will, the court must appoint that person even though the siblings disagree.

 

Any document purporting to be a last will or document attempting to make dispositions of a person’s property after his or her death must be filed with the clerk of court within 10 days after receiving notice that the will-maker, called the “testator,” is dead. If the document is a trust, the original trust does not need to be filed, but a notice of trust must be filed by the successor trustee. Even if they believe the will is invalid or fraudulent, the custodian of the will must still deposit the will with the court for the proper county where the probate judge will decide if it is valid and should be admitted to probate.

 

Even if there are no assets in the probate estate, and even if no one intends to file a petition for administration, the custodian must still file the will with the court. If assets were to show up in later years, as often happens, at least the will in the hands of the probate court will be able to be probated and transfer the asset to the proper person. The deceased person may win a suit for wrongful death which will require a personal representative to be appointed, perhaps many years after his or her death. Additionally, the will is needed to distribute the personal injury award to the proper beneficiaries.

 

If the custodian refuses to file the original will with the court after the death of the testator, any interested party may file suit to obtain the filing of the will. Unless the custodian can show just cause for the refusal, he or she will be liable to the petitioner for all damages, costs and attorney’s fees. Willfully refusing to produce the will can be very costly.

 

When the will is filed the person filing the will must provide the clerk of court with the testator’s date of death and Social Security number, both usually accomplished by providing an original death certificate to the probate clerk. Additional death certificates must be provided to each county recorder if deeds will be filed to change ownership of real property and to any financial institution or insurance company before they will pay a beneficiary.

 

Most attorneys recommend ordering from the funeral director at least 10 to 12 death certificates, which cost $10 each. All death certificates had formerly contained a section for the doctor to sign stating the cause of death. Since the legislature was convinced that those dying from AIDS should not have to disclose that cause because of prejudice, now when ordering the death certificates, you must ask for some with the cause of death, for example to be given to an insurance company who may challenge the issuing of the policy for failure to disclose an illness, and others without the cause of death that can be supplied to financial institutions and to be recorded where deeds are recorded to pass property, which makes them quite public.

 

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