My mother told me I am the executor of her estate, how do I get her to write a will without a lawyer?

Question

She hasn't written the will, because it signals death to her and frankly she doesn't want to be bothered, I don't want to be blindsided when the time comes, I want to ask her where are her insurance papers and keys to her private mailbox and other things I should know about but she refuses to give me a straight answer. What should I do?

Answer 1

I have seen more problems in the past 34 years with people who think they will save a few bucks by writing their own wills. Sure, people can write their own wills, but often they do it in a manner that causes expensive mistakes. Best idea is to involve a lawyer.

The best way of approaching a parent who is facing her own mortality? BE DIRECT. It is like the old Nike commercial. JUST DO IT. If there is no will, any relative within a certain degree of relationship could petition the court for letters of administration. Sure, the intestate laws are a form of "will" for people who are not motivated to write wills, but the intestate laws are often not what people want.

If there is no will, just think, no charitable gifts to church or charity, no special consideration of children or grandchildren with special needs, no gifts to people who are outside the immediate family. In an intestate situation, everything is by the percentages based on degree of relationship.

JUST DO IT. Sit Mama down before hand and find out the following:

(1) What she owns and where it is -- banks she deals with, real estate she owns, etc.

(2) Tax records -- old income tax returns, etc.

(3) Is there any life insurance?

(4) What about funeral plans? What funeral director? Expensive funeral? Or inexpensive cremation?

(5) Any specific items of property to go to specific children or grandchildren? Grandma's wedding ring, the grandfather clock, any antiques, etc.

(6) Charitable gifts -- if Mama tithed at church, she may want to make a gift out of her estate to the church.

(7) Does she want to treat all of her children equally? Or does she want to give less money to the daughter that married the rich doctor? If she has a child who predeceased her, does she want that deceased child's share to go to his or her children (issue) if they died with children, or would she want to give that share to the surviving spouse of that deceased child.

TIME IS OF THE ESSENCE. I had a client who did nothing, and then he went and got killed in a traffic accident.

Answer 2

It is virtually impossible to offer a reasonable and detailed answer to your question. Most people should not be drafting their own wills. The laws govering the succession of property, both testate (with a will) and intestate (without a will) vary from state to state. Some states have streamlined probate procedures if a will meets certain criteria. Lawyers specializing in estate planning know the requirements for self-proved wills. Forms that you obtain at a stationary store, on line or in consumer will drafting software may not work in your state. Simple wills are not expensive. Your mother should have a lawyer draft her will.

To deal with your mother, you must become informed about the probate laws in her home state. In general terms, however, there are some things that are nearly universal.

1. You are not the executor (sometimes designated the personal representative) of your mother's estate until a Probate Court Judge or Commissioner appoints you.

2. Your mother has no control over the distribution of her assets is she does not make a will. The intestate succession laws of the state where your mother lives will decide who gets what.

3. In many states which have adopted the Uniform Probate Code, probate need not be an expensive, time consuming process. However, the streamlined, informal administration of an estate is only available if a person executes a proper self-proved will.

4. Trusts can streamline the administration of an estate, but only if the creator of the trust uses the trust properly during her lifetime. Many people create more problems with their revocable living trusts that they solve because they don't understand what they are doing.

It is clear that to take the path that your mother it taking is the worst thing she could do. The default answer, the one that results from inaction, is usually the wrong answer. Talk to your mother. Be firm, but respectful. Ask a friend who has an attorney for a referral to an attorney who does estate planning. Have a will done for yourself. Tell your mother that you have a will. Show it to her. Convince her that a will is not a precursor to death.

If she still does not want to have a will. There are some strategies you can use to minimize the problems that will result from her death. Have her bank at an institution that has accounts where she can name a death beneficiary. Do the same for any stock brokerage accounts. Some states allow beneficiary deeds to be used to designate who will own her real estate after her death.

If you are going to develop a strategy for encouraging your mother to seek legal advise, do it with the advise of your own attorney. That way you will be able to have informed discussions with your mother about her problems and possible solutions. If she still does not want to deal with the issues that will arise upon her death, you have no power to force her to do anything. You should be comfortable knowing that you've done everything that can be done.

Good Luck

Answer 3

By law, they have to write the check out to the policyholder, or their estate, or the court appointed executor of the estate (but AS executor - not to them personally). NO ONE can inherit that money, until/unless all his debts are paid off, first. YOU have no ownership interest, as the cosigner. You won't see any of the money, sorry - you only agreed to guarantee the loan. With no will, it likely will take six months or so to wind through probate court. If your boyfriend had a will, it might have been easier. As it is, only his heirs will get any money. If he has children, most likely it will be them - not his mother. And definately not you, sorry. "Girlfriend" isn't an heir, unless there's a will stating that. Cosigner doesn't give you ANY rights - only the duty to pay the loan.

Answer 4

As others said...... no will means you are not the executor. A self will may have some validity in some cases but financial institutions do not have to honor it. So it will all go to probate meaning a loss of a huge portion of the estate.

What if she becomes incapacitated or is hurt. Medical decisions that need to be made immediatly will be delayed whenthere is no clear cut person allowed to make them.

What if she needs to be put into full time care? With access to money you could possibly hire a part time nurse to care for her...... then she could stay with you. Without access to funds she could end up in some state facility for a time.

She needs to think about where her money goes and the effect that all of this will have on everybody else. Or if she gets ill and how fixing all of this does as well.

I finally had to jst sit my mother down and say....... I don't care about money but what I do care about is what happens to you and what you want. She wants to leave money to the grandchildren for college. I explained that if not done properly she might as well take 30% of the money out now and throw it in the trash. I explained to her that if she left someone her house they would have to pay something like 45,000 in taxes before they keep it. This got her attention.

Go to a lawyer. Look into a "living trust" and things like that. I made an appointment and told her when I was picking her up. After she spoke with a lawyer (who explained it well) she got all into it. I aslo suggested that since she was going to save so much that she would be able to travel around and see people....... living life.

Answer 5

Either you or your mother is playing with fire by not having an attorney draw up a will.
There are so many laws regarding wills and estates that your mother might wind up losing everything she ever had. Spend the couple hundred bucks and get a will drawn up the right way. Don't run the risk of the State, or creditors taking everything because she didn't get a proper will done.

Answer 6

You can only be named the executor or executrix in a will. A person cannot simply name you as such. Being named the executrix(for female)means that a last will and testament has been written naming you such. It can be written on a brown paper bag as long as it is registered and sworn before the county clerk. Without this you are dead in the water and probably headed to probate court.

Answer 7

If she does not have some sort of living trust, including a will, there will be no estate to administer. The system is designed to steal every penny she has and exploit the situation when family members are grieving over the loss of someone they love; and unfortunately, it is one system that works incredibly well. If there are things of value, she needs to begin distributing them.

No bank or financial institution is required to honor a will or power of attorney. If you do not get ahead of it, you will find yourself in a constant struggle to accomplish anything. My father thought he was smart enough to do it all himself – he wasn’t. It took me almost a year just to stop the damage and restore my mother’s control over things. It my case, it really helped when she finally agreed to talk to our attorney who was able to explain things better than I was.

Sorry, but there is nothing easy about any of this.

Answer 8

you are not the executor of her estate at all she has no will. writing a will without a lawyer is very very tricky.

Answer 9

You at least need to get her to write a will. Have her sign it in front og witnesses.

Answer 10

http://www.handelonthelaw.com/