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Tillem & McNichol

Len Tillem and Rosie McNichol

Dear Len and Rosie,I am one of nine adult children.

We have an 81-year-old, very stubborn mother who owns her home free and clear, plus her personal possessions. She is a bit gun shy about discussing her estate, and she has no will.

Whenever we try to talk to her about getting a will or a living trust, she always says, “Don’t rush me into the grave.”

Her only concern is that all nine of us get an equal share of the house after it is sold.

She says that she wants three of us named as executors of her estate.

Frankly, this really worries me, because the three of us have very different personalities, and we are spread out all over the country.

I really want to avoid future problems so we won’t have a big mess on our hands and wind up paying more in lawyer fees and taxes then we inherit.

What can you suggest?

Janice

Dear Janice,

The good news is that even if your mother never signs a will or a trust, her wishes would ultimately be fulfilled through intestate succession, the law about who gets what when someone dies without a will.

The rules of intestacy provide that the estate of a decedent with no surviving spouse is to be divided equally among the children, with the share of a predeceased child going to that child’s living descendants.

Do not get us wrong. Your mother should have an estate plan. Without one, all sorts of problems can come up.

There could be a fight over which child gets to be the administrator (executers are only for estates where there is a will, administrators are for intestate estates).

Without a will, the administrator will have to buy a bond unless all nine children waive the bond requirement.

Finally, without a will, there’s no way to prove how your mother wanted her personal possessions distributed. We have seen families fight tooth and nail over items such as a chaise lounge and a charm bracelet.

Your mother should definitely make a will, if only to appoint an executor to administer the estate and to say her executor can serve without bond.

Also, if your mother has personal possessions of a particular sentimental value, she could use her will to decide who gets what when she dies.

She should also seriously consider creating a revocable living trust to avoid probate. Even if your mother’s home isn’t worth all that much, a trust is probably a good idea for her.

Trusts are more expensive than wills, but a trust will more than make up for it in reduced legal fees and the time you’ll save after your mother’s death.

It’s usually not a good idea to name more than a couple of co-executors or cotrustees.

Your mother’s trust or estate could suffer from the “too many cooks spoil the broth” problem. It’s best that your mother not name two or more children to serve together as trustees or executors unless the children have a track record of working well together.

Many people shy away from estate planning, for many different reasons. Sometimes, it is difficult to confront your own mortality.

However, an orderly estate plan is a blessing to those you leave behind, and would make a wonderful gift from your mother to her children.

Len and Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 707-996-4505.

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