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The Nightmare That Can Happen When Your Spouse Dies Without Estate Planning

By Mitchell Miller

Republish: EasyPublish™ Published: 07Oct2008 Word count: 562 Viewed: 206 time(s) Get Free Content For Your Site

Having someone you love die suddenly can be terrible enough. But when that someone had no signed estate planning documents, the nightmare of dealing with the financial mess can go on for years.

Mark and Eileen had gotten to the point with their estate planning attorney where draft documents had been prepared. But somehow Mark and Eileen never got around to resolving the last few open questions even though their estate planning attorney kept nagging them to make these decisions.

And then a totally unexpected cerebral hemorrhage killed Mark. One day he was fine, the next he was gone.

When Eileen recovered enough to start thinking, she wondered how she was going to live. She thought things would simply come to her and go on the way they had before, with the same bank accounts, investments, and real estate. But that was not to be.

As her attorney explained, much of their property was community, which meant that it could be transferred to her without probate. Without probate, sure - but with a lot of legal papers and a court filing - a "spousal property petition" - that cost her $3,000.

However, her husband had inherited a piece of real estate from his parents. That made it separate property. Eileen was shocked to find out that, in California, separate property does not go to the surviving spouse!

She and Mark had planned that this property would go to her while she was alive, and then pass to their children upon her death. But since her husband died without a will, that is "intestate," California law determined how his separate property would be divided.

Instead of the estate plan they had intended, the real estate was divided into thirds, one-third for her and one-third for each of their two children. Now her family is close, and everything will probably work out all right. But for some families, this could be a never-ending nightmare for the widow.

Of course, even getting that far wasn't easy. Her lawyer had to file for probate for the separate property, which meant more forms, more legal mumbo-jumbo, more expense, and of course, more time. All in all, it took two years from the time her husband died until his estate was finally settled.

And the worst part? It cost about $17,000 in legal fees. That's right, $17,000. And the vast majority of that were fees which are fixed by state law based on the value of the probate estate. It didn't matter how much time her lawyer spent on the case, whether there were a hundred pieces of property to deal with or just one, he got the same for the probate - $14,000. (The additional $3,000 came from the spousal property petition above.)

Not finishing their estate plan cost Eileen $17,000, took two years of her life, volumes of paperwork, and ended up with her husband's estate not being passed on the way they had intended.

The moral of this true story: put aside your objections, doubts, hesitations, and reluctance; find a good estate planning attorney; get a will and a living trust - and sign these documents; GET IT DONE!

The above information is NOT legal advice, only considerations for you to discuss with your own estate planning attorney. The providing of this material does not establish an attorney-client relationship.

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