Most estates don't go through probate [*]

[senex]

In a recent contentious (and now locked) thread, there was a dispute about whether "most" estates go through probate courts. Due to the strongly held contrary opinions, I figured some data would be useful.

The only academic source I've seen is a 2015 article In Georgetown Law Journal [1], which states (p. 627) that "previous studies determined that between 15 and 40% of all deaths resulted in probate," and that the author's personal research, covering one year of one populous California county, showed 7% of decedents leaving probate estates (Alameda County, 2007, 9319 deaths, 668 court cases).

The asterisk [*] in my subject line is due to all the caveats:
- this is one academic paper (though it references others)
- the 7% figure is from one county of a community property state with burdensome probate law,
a state that has spousal provisions and doesn't supervise small (<$150k) estates
(these points may be highly significant; his 15-40% number from "previous studies" cites a broader range of states/counties)
- popularity does not indicate suitability

My conclusion is that it is valuable to discuss & understand non-probate transfers/rules, because regardless of one's own estate plan, one is likely to be involved in several non-probate estates throughout one's life.

To make this actionable, does anyone have reliable citations that buttress or refute this claim?


[1] https://papers.ssrn.com/sol3/papers.cfm ... id=2480719

[NotWhoYouThink]

I don't have the answer, but can add to the speculation a bit. When a married person dies, the estate might not go through probate because all assets were previously held jointly. Individual retirement accounts would be exceptions to that, so the estate might go to probate or not depending on the size of the accounts and whether there are beneficiary designations.

A lot of people have few assets, so there might be no need for probate, or no one who cares enough to initiate a probate process.

The small estate not-quite-probate process in many states might be a factor, although I think there are rules about paying debts before distributing funds.

My bet is the least common reason to avoid probate is a well-thought-out and executed estate plan, clearly communicated to heirs. That's probably in rainbow unicorn territory.

[cowdogman]

My conclusion is that it is valuable to discuss & understand non-probate transfers/rules, because regardless of one's own estate plan, one is likely to be involved in several non-probate estates throughout one's life.

I think the more relevant question is how many estates with assets over a certain amount (let's say $500,000) go through probate? That question is going to be more relevant to this group. Most states have de minimis exceptions for probate (e.g., my state doesn't require probate for decedents who didn't own real estate and whose assets were less than $100,000), which is going to skew the number on the more general question.

But the answer to even that more limited question is really going to vary state by state, based on state laws and local practice.

I used a partner at a major law firm in Seattle for our estate planning, and his firm has been doing estate planning for over 100 years. We talked briefly about avoiding probate, but he dismissed the idea--given that our estate is simple (house, personal property and investments) he didn't think it was beneficial in Washington. (He did give me advice on naming beneficiaries on IRAs, etc.)

Some people have very good reasons for using trusts during their lives for some of their assets--e.g., a family business that will passed on or a special needs child that will need to be taken care of--but for most people it is not necessary or even helpful.

Plus if a living trust is used to hold property, the trust formalities need to be followed consistently in order to avoid having the trust declared invalid--and I suspect most people do not follow the formalities (e.g., they ignore the titling)--and their estates end up a total mess.

My somewhat jaundiced view is that living trusts and other probate avoiding techniques are products sold by strip mall attorneys to the unwitting, who have an unjustified fear of probate.

One other point: Having participated in several estates and witnessed the emotions involved I can see the benefits of probate. The primary purpose of probate is to make sure debts are paid and the remaining assets are distributed as intended. The fact that a court proceeding is on going and a judge is involved keeps people in line. An estate with multiple beneficiaries where all assets pass outside of probate could easily be a nightmare.

If the goal is to better understand ways to avoid probate, my advice is talk to a good lawyer and get his/her view. The advice is going to vary greatly state to state.

[Dottie57]

My mom has POD for all of her bank accounts. Her IRA has beneficiaries. The house has TOD. The contents of the house are the only thing left to fight over. My brother and I are the beneficiaries of the will andwe have promised each other we will not fight over anything.

[LK2012]

My mom has POD for all of her bank accounts. Her IRA has beneficiaries. The house has TOD. The contents of the house are the only thing left to fight over. My brother and I are the beneficiaries of the will andwe have promised each other we will not fight over anything.

Sounds great. What state are you in, and how did you arrange for the house to be TOD?

[stan1]

My mom has POD for all of her bank accounts. Her IRA has beneficiaries. The house has TOD. The contents of the house are the only thing left to fight over. My brother and I are the beneficiaries of the will andwe have promised each other we will not fight over anything.

Sounds great. What state are you in, and how did you arrange for the house to be TOD?

google tod primary home your state

Some states have simple forms, others don't allow it, some in the middle. Some have limitations you might not like.

[sailaway]

Wouldn't an intestate estate go through probate, regardless of the actual assets? It seems like that would drive the numbers up.

I am fairly financially savvy, but if we both die tomorrow, there aren't any provisions for our meager assets that aren't in POD or beneficiary accounts.

[FIREchief]

My mom has POD for all of her bank accounts. Her IRA has beneficiaries. The house has TOD. The contents of the house are the only thing left to fight over. My brother and I are the beneficiaries of the will andwe have promised each other we will not fight over anything.

Are one of you going to serve as executor?

[Bmac]

Cowdogman

“
I used a partner at a major law firm in Seattle for our estate planning, and his firm has been doing estate planning for over 100 years. We talked briefly about avoiding probate, but he dismissed the idea--given that our estate is simple (house, personal property and investments) he didn't think it was beneficial in Washington. (He did give me advice on naming beneficiaries on IRAs, etc.)”

Ha! I wonder if we had the same attorney when we re-did our estate plans a couple of years ago as we received the exact same advice. I’m glad to get some confirmation.

[LilyFleur]

My mom has POD for all of her bank accounts. Her IRA has beneficiaries. The house has TOD. The contents of the house are the only thing left to fight over. My brother and I are the beneficiaries of the will andwe have promised each other we will not fight over anything.

Sounds great. What state are you in, and how did you arrange for the house to be TOD?

I will answer this, although I did not originally post.
I live in California, and my condo is titled TOD to my two children.
I was researching California estate planning and came across this:
https://store.nolo.com/products/califor ... -deed.html
I did the TOD and filed it in person with the county.
I think a TOD is sometimes called a lady bird deed.
The legislation is fairly recent in California, and when I filed my TOD in 2017, none of my friends knew about it.

[drawpoker]

Wouldn't an intestate estate go through probate, regardless of the actual assets? It seems like that would drive the numbers up.

Here (Maryland) the state apparently doesn't permit the nicer-sounding, more genteel phrasing. That so-and-so died intestate. No, the legal notices published in local paper (that everyone and their brother reads to be nosy) often bark out "xxx has been appointed personal representative of the estate of Joe Blow who died without a will.....blah blah and so on.

Me, and my circle, have often remarked how embarrassing, how humiliating, it would be for it to be announced to the whole world that someone was too dumb, or lazy, to make out a will. Ha ha, good thing Joe is not around anymore to be subjected to the egg on face, cracks from peanut gallery

Never gave it much thought until this thread. But, evidently, dying intestate does not automatically mean you, or rather corpse, won't go through probate process anyway.

[sailaway]

Can anyone share their experiences of dealing with an intestate estate? If so, are you also willing to share the state in question?

How much trouble will we save our families by writing our wills? Given that we are childless and the only separate, non TOD property between us is possibly one old car (brought into the relationship and never retitled), we are the dumb, lazy, egg on our faces potential corpses in the Maryland scenario.

It is slightly more complex if we die together, though. Someone has to deal with the boat, the car, and our dirty underwear. One set of parents would find a charity to take it all away. The other set of parents would see that as negligent, at best. Assuming we outlive our parents, I have no idea what kind of effort any of our siblings would put forth.

[drawpoker]

...slightly more complex if we die together, though....

Yup, you just hit on it. That is exactly the kind of thing lawyers will warn you about, hence, importance of having a will.

As far as Maryland believing in the naked truth in these matters, it's even worse. The legal notices in the paper re the opening of an estate also identifies it as a regular estate or a "small estate".

Yikes. Again, if you fall into the latter, it seems to be publicly announcing to the whole world that you were a just a ne'er-do-well, sluggard, a failure, fill in the rest....

[FIREchief]

Me, and my circle, have often remarked how embarrassing, how humiliating, it would be for it to be announced to the whole world that someone was too dumb, or lazy, to make out a will. Ha ha, good thing Joe is not around anymore to be subjected to the egg on face, cracks from peanut gallery

Really?? That's what you and your circle talk about??

[BillyK]

Florida is a "Tenancy by the Entirety" state which can preclude the need for probate in many instances including quite large estates.

[Dottie57]

My mom has POD for all of her bank accounts. Her IRA has beneficiaries. The house has TOD. The contents of the house are the only thing left to fight over. My brother and I are the beneficiaries of the will andwe have promised each other we will not fight over anything.

Sounds great. What state are you in, and how did you arrange for the house to be TOD?

We live in Minnesota. When my parents had their wills redone, their lawyer created the tod for the house. My brother has a next door neighbor who is a lawyer and he checked paperwork of first lawyer so we are all set.

[Dottie57]

My mom has POD for all of her bank accounts. Her IRA has beneficiaries. The house has TOD. The contents of the house are the only thing left to fight over. My brother and I are the beneficiaries of the will andwe have promised each other we will not fight over anything.

Are one of you going to serve as executor?

I am executor , my brother is named as secondary if for some reason we can’t serve. My brother will get a full accounting of money spent. My mom is terminally ill.

[celia]

In a recent contentious (and now locked) thread, there was a dispute about whether "most" estates go through probate courts. Due to the strongly held contrary opinions, I figured some data would be useful....

I didn't look for any studies like you did, but found useful data from the Census Bureau by following some links starting here:
https://www.census.gov/topics/income-po ... ealth.html

Eventually, I landed on this page which references a summary chart on the first link. Looking at family net worth, grouped by different criteria, we can see that the average US household is very different than the average Boglehead's household.

Knowing that about half of US households don't even have to file tax returns, I think we can rule them out for having any assets saved up, since they don't have any/much income left over after paying for their living expenses. That leaves about half of households who might be subject to probate.

Then, if we assume half of the remainder households are married, of that half, the first spouse to die would likely leave everything to the survivor spouse. So, this eliminates 1/4 of the people who even file. So we are left with 3/8 of the population who is in households who file taxes and might be the survivor who dies with some assets.

Then, realize that not everyone makes it to retirement age. Those who died earlier than usual didn't have a typical time period to amass assets. Likewise, those who lived past 80, likely spent down most of their assets for living expenses. And since each state likely has a "floor" defining how much in assets owned before probate is required, the percentage of the remaining population who meets the definition is even lower. But those who did estate planning to avoid probate (ie, trusts) shrinks the percentage even more.

So, my conclusion is that probably only 5% to 20% of the population would be subject to probate.

[Mr. Rumples]

Probate thresholds vary widely among states. In Iowa its $100,000, in Georgia its $10,000, in OK its $22,000. California's is $150,000 depending on the type of assets. Stands to reason that more estates go through probate in GA than CA.

[RickBoglehead]

Can anyone share their experiences of dealing with an intestate estate? If so, are you also willing to share the state in question?

How much trouble will we save our families by writing our wills? Given that we are childless and the only separate, non TOD property between us is possibly one old car (brought into the relationship and never retitled), we are the dumb, lazy, egg on our faces potential corpses in the Maryland scenario.

It is slightly more complex if we die together, though. Someone has to deal with the boat, the car, and our dirty underwear. One set of parents would find a charity to take it all away. The other set of parents would see that as negligent, at best. Assuming we outlive our parents, I have no idea what kind of effort any of our siblings would put forth.

I have.

Father passed away, estranged from family. Being out of state complicates it, court may require a bond posted for an out of state executor (personal representative), or the hiring of an in state attorney.

From date of death until being named Personal Representative took 4 months. That included burial arrangements, finding an attorney, gathering information, filing with court, then being named. Didn't help that attorney recommended by sibling based on her friend's recommendation was awful. So awful that we reached a point where I ditched her, and she then offered to cancel an outstanding bill (that wasn't small) due to her incompetence. I left her a truthful review on every website that rates lawyers I could find.

Had to drive 600 miles to empty apartment, return lease car, sell large possessions, load up remaining stuff worth money, drive back, then distribute or sell.

Bank accounts to close because no POD / TOD specified. Abandoned funds held by state.

Luckily law specified that heirs were siblings, and no one wanted any property, so sold everything and split 3 ways. Ex-wife kept asking what estate was worth, and I kept telling my mother it was none of her business, she didn't like that despite being divorced for over 30 years.

Make a will or specify POD/TOD on everything or you make someone's life hell.

Of course, no one can step forward to become personal representative...

[aristotelian]

Can anyone share their experiences of dealing with an intestate estate? If so, are you also willing to share the state in question?

How much trouble will we save our families by writing our wills? Given that we are childless and the only separate, non TOD property between us is possibly one old car (brought into the relationship and never retitled), we are the dumb, lazy, egg on our faces potential corpses in the Maryland scenario.

It is slightly more complex if we die together, though. Someone has to deal with the boat, the car, and our dirty underwear. One set of parents would find a charity to take it all away. The other set of parents would see that as negligent, at best. Assuming we outlive our parents, I have no idea what kind of effort any of our siblings would put forth.

I will give one particular example. My uncle died intestate, no kids, divorced from my aunt, and estranged from his family in Europe. He left his investment accounts TOD to my kids. However, there was no one to do basic things such as sign the death certificate and pay the funeral home, so we had to wait for a public administrator to be appointed by the court. The investments inevitably transferred over, but his body stayed at the funeral home for 3-4 months and I have no idea what happened to his condo and remaining assets. It appears the public administrator discovered another $300K which appears to have been distributed among distant/estranged relatives (and the public administrator himself, in the form of fees). One additional consequence is that my newborn niece was left out though we are confident he would have wanted her included equally.

[stan1]

Can anyone share their experiences of dealing with an intestate estate? If so, are you also willing to share the state in question?

How much trouble will we save our families by writing our wills? Given that we are childless and the only separate, non TOD property between us is possibly one old car (brought into the relationship and never retitled), we are the dumb, lazy, egg on our faces potential corpses in the Maryland scenario.

Well as one data point since you asked my father died intestate in California. His wife spent hundreds of hours over several years cleaning up matters related to property (vacant land) he owned by himself as a pre-marital asset and trying to shoe horn it into small estate exclusion to avoid probate. May not apply to your situation.

[stan1]

My mom has POD for all of her bank accounts. Her IRA has beneficiaries. The house has TOD. The contents of the house are the only thing left to fight over. My brother and I are the beneficiaries of the will andwe have promised each other we will not fight over anything.

Sounds great. What state are you in, and how did you arrange for the house to be TOD?

I will answer this, although I did not originally post.
I live in California, and my condo is titled TOD to my two children.
I was researching California estate planning and came across this:
https://store.nolo.com/products/califor ... -deed.html
I did the TOD and filed it in person with the county.
I think a TOD is sometimes called a lady bird deed.
The legislation is fairly recent in California, and when I filed my TOD in 2017, none of my friends knew about it.

There are some limitations of TOD in California that you may want to consider, such as mental incapacity of property owner and what happens if your heirs pass away before you do and the TOD isn't updated (or can't be updated because you are incapacitated). If you own an expensive property you may still want the property in trust to help avoid these problems. Then again maybe you did consider that and decided they were not important for your situation.

[bengal22]

Cowdogman

“
I used a partner at a major law firm in Seattle for our estate planning, and his firm has been doing estate planning for over 100 years. We talked briefly about avoiding probate, but he dismissed the idea--given that our estate is simple (house, personal property and investments) he didn't think it was beneficial in Washington. (He did give me advice on naming beneficiaries on IRAs, etc.)”

Ha! I wonder if we had the same attorney when we re-did our estate plans a couple of years ago as we received the exact same advice. I’m glad to get some confirmation.

Lawyers make money(5 percent at least) on estates going through probate. They make zero when an estate is transferred vis beneficiaries and POD/TOD. Makes sense that a lawyer would advise not to avoid probate.

[bsteiner]

...
Lawyers make money(5 percent at least) on estates going through probate. They make zero when an estate is transferred vis beneficiaries and POD/TOD. Makes sense that a lawyer would advise not to avoid probate.

Probating the Will is usually a small part of the work involved in an estate administration.

Except in a very small estate, a contested estate, or some other unusual situation, the legal fees for an estate administration are usually much less than 5%.

[steve roy]

When my wife’s father died, he left an estate of $99k. A grand more and probate would have been triggered. More money came in and almost pushed it over the $100k marker, but some legal expenses came up and ... no probate. Happily.

[bsteiner]

When my wife’s father died, he left an estate of $99k. A grand more and probate would have been triggered. More money came in and almost pushed it over the $100k marker, but some legal expenses came up and ... no probate. Happily.

The work to probate the Will is the same for a $100,000 estate as for a $100 million estate. Someone worth $100,000 should try to have his/her assets pass in some other way such as by beneficiary designation.

New York just raised its voluntary administration (small estate) limit from $30,000 to $50,000, and California just raised its small estate procedure from $100,000 to $150,000.

[TSR]

Can anyone share their experiences of dealing with an intestate estate? If so, are you also willing to share the state in question?

How much trouble will we save our families by writing our wills? Given that we are childless and the only separate, non TOD property between us is possibly one old car (brought into the relationship and never retitled), we are the dumb, lazy, egg on our faces potential corpses in the Maryland scenario.

It is slightly more complex if we die together, though. Someone has to deal with the boat, the car, and our dirty underwear. One set of parents would find a charity to take it all away. The other set of parents would see that as negligent, at best. Assuming we outlive our parents, I have no idea what kind of effort any of our siblings would put forth.

I have.

Father passed away, estranged from family. Being out of state complicates it, court may require a bond posted for an out of state executor (personal representative), or the hiring of an in state attorney.

From date of death until being named Personal Representative took 4 months. That included burial arrangements, finding an attorney, gathering information, filing with court, then being named. Didn't help that attorney recommended by sibling based on her friend's recommendation was awful. So awful that we reached a point where I ditched her, and she then offered to cancel an outstanding bill (that wasn't small) due to her incompetence. I left her a truthful review on every website that rates lawyers I could find.

Had to drive 600 miles to empty apartment, return lease car, sell large possessions, load up remaining stuff worth money, drive back, then distribute or sell.

Bank accounts to close because no POD / TOD specified. Abandoned funds held by state.

Luckily law specified that heirs were siblings, and no one wanted any property, so sold everything and split 3 ways. Ex-wife kept asking what estate was worth, and I kept telling my mother it was none of her business, she didn't like that despite being divorced for over 30 years.

Make a will or specify POD/TOD on everything or you make someone's life hell.

Of course, no one can step forward to become personal representative...

This sounds very hard. I have not had this experience, but I wonder if you have any thoughts on the following question: what aspects of this experience were due to a lack of a will per se, and what were due to a lack of broader estate-planning efforts and/or a trust? It seems to me that if he had a will that ONLY said "all to my children evenly per stirpes," the only difference in your experience would be:

1. Clarity regarding who would execute the will/administer the estate.
2. Maybe some clarity about burial wishes if anyone had thought to put that in the will.

You would still have had to deal with most of the other stuff. The only reason I'm bringing this up is that I think sometimes people discuss these things as demonstrating the importance of a will rather than the importance of broader estate planning such as --- as you mention --- the POD/TOD materials. If your father had a will, it seems there is a good chance that it would have pretty closely resembled the intestacy laws (equal to children). If he had a will and had done nothing toward POD/TOD stuff, you'd have still been deeply frustrated by the process. My real take-away from your story is that the biggest problem with dying intestate is that it may take many months to appoint an administrator of the estate, which would be intolerable to me. Anyway, thanks for sharing and I would be interested in your thoughts on this.

[RickBoglehead]

Can anyone share their experiences of dealing with an intestate estate? If so, are you also willing to share the state in question?

How much trouble will we save our families by writing our wills? Given that we are childless and the only separate, non TOD property between us is possibly one old car (brought into the relationship and never retitled), we are the dumb, lazy, egg on our faces potential corpses in the Maryland scenario.

It is slightly more complex if we die together, though. Someone has to deal with the boat, the car, and our dirty underwear. One set of parents would find a charity to take it all away. The other set of parents would see that as negligent, at best. Assuming we outlive our parents, I have no idea what kind of effort any of our siblings would put forth.

I have.

Father passed away, estranged from family. Being out of state complicates it, court may require a bond posted for an out of state executor (personal representative), or the hiring of an in state attorney.

From date of death until being named Personal Representative took 4 months. That included burial arrangements, finding an attorney, gathering information, filing with court, then being named. Didn't help that attorney recommended by sibling based on her friend's recommendation was awful. So awful that we reached a point where I ditched her, and she then offered to cancel an outstanding bill (that wasn't small) due to her incompetence. I left her a truthful review on every website that rates lawyers I could find.

Had to drive 600 miles to empty apartment, return lease car, sell large possessions, load up remaining stuff worth money, drive back, then distribute or sell.

Bank accounts to close because no POD / TOD specified. Abandoned funds held by state.

Luckily law specified that heirs were siblings, and no one wanted any property, so sold everything and split 3 ways. Ex-wife kept asking what estate was worth, and I kept telling my mother it was none of her business, she didn't like that despite being divorced for over 30 years.

Make a will or specify POD/TOD on everything or you make someone's life hell.

Of course, no one can step forward to become personal representative...

This sounds very hard. I have not had this experience, but I wonder if you have any thoughts on the following question: what aspects of this experience were due to a lack of a will per se, and what were due to a lack of broader estate-planning efforts and/or a trust? It seems to me that if he had a will that ONLY said "all to my children evenly per stirpes," the only difference in your experience would be:

1. Clarity regarding who would execute the will/administer the estate.
2. Maybe some clarity about burial wishes if anyone had thought to put that in the will.

You would still have had to deal with most of the other stuff. The only reason I'm bringing this up is that I think sometimes people discuss these things as demonstrating the importance of a will rather than the importance of broader estate planning such as --- as you mention --- the POD/TOD materials. If your father had a will, it seems there is a good chance that it would have pretty closely resembled the intestacy laws (equal to children). If he had a will and had done nothing toward POD/TOD stuff, you'd have still been deeply frustrated by the process. My real take-away from your story is that the biggest problem with dying intestate is that it may take many months to appoint an administrator of the estate, which would be intolerable to me. Anyway, thanks for sharing and I would be interested in your thoughts on this.

If there had been a will, and if an executor had been named, then the months waiting to be appointed would have been much shorter. Still would have had to get an attorney or post a bond. Still would have had to find bank accounts.

In short, had there been POD/TOD on the accounts, then it's possible we could have avoided probate because the assets were non-existent outside bank accounts - a lease car, a leased apartment. We could have avoided the lawyer, and let the state deal with the ramifications of intestate.

[Carefreeap]

My mom has POD for all of her bank accounts. Her IRA has beneficiaries. The house has TOD. The contents of the house are the only thing left to fight over. My brother and I are the beneficiaries of the will andwe have promised each other we will not fight over anything.

Sounds great. What state are you in, and how did you arrange for the house to be TOD?

I will answer this, although I did not originally post.
I live in California, and my condo is titled TOD to my two children.
I was researching California estate planning and came across this:
https://store.nolo.com/products/califor ... -deed.html
I did the TOD and filed it in person with the county.
I think a TOD is sometimes called a lady bird deed.
The legislation is fairly recent in California, and when I filed my TOD in 2017, none of my friends knew about it.

There are some limitations of TOD in California that you may want to consider, such as mental incapacity of property owner and what happens if your heirs pass away before you do and the TOD isn't updated (or can't be updated because you are incapacitated). If you own an expensive property you may still want the property in trust to help avoid these problems. Then again maybe you did consider that and decided they were not important for your situation.

Or that one of the beneficiaries of the TOD has serious financial problems which would complicate the sale of the TOD property.

I'm grateful that my mom for all of her financial problems did spend the money and time to set up a Trust (in CA). Although TOD wasn't an option in 2008 when she died had it been, I can't imagine the nightmare my brother's liens, foreclosure, divorce and subsequent child support claims would have had on the sale of her property.

[rj342]

My father passed in 2017 at the age of 87 with no will (that could be found), survived by my mother then 83. Alabama.
Very dysfunctional situation where she actually finally moved out at the age of 80. They remained separated, not divorced (old Catholics), in part because it kept her on his federal retirement cheap Medicare supplement, and also much easier for her to get his ok pension when he passed (about 75% survivor IIRC).
No other retirement income on his part -- she had modest Social Security and a small state pension. Instead of investing in socks & bonds he put his money in real estate -- up to about a dozen homes at one time, but far too leveraged, a house of cards which collapsed on him a few years prior.
Didn't even own the run down roo f over his head outright, periodically refinancing for some cash out even in retirement. House in reality worth less than what owed on that last mortgage (with my mothers name on it too). No running cars, some old interesting but inoperable ones whose value we could not establish (called around nationally, old Model T in very bad shape and a 1950's Mercedes only a bit better). Other than the mortgage he had maybe $10k in debts only in his name. Just several hundred in the bank account (I already had POA access which of course ended with his death, no POD on it).

Took some digging and then consulting with a lawyer to finally determine that there was no need to file probate since it was an 'insolvent estate'.
Only 'assets' were his pension, rolling to my mother, and the house (joint tenancy) with no equity, and the old cars (entirely his) with not active titles that in theory *might* have been worth something to the right collector if you could find them.

What was weird and unsettling about that process is that there is no formal determination by the state officially saying you are ok NOT filing for probate. You just *don't*, and hope no creditor tries to make a stink about it. Fortunately they all just accepted the death certificate and wrote it off.

Last bit of drama -- the badly rundown house with zero equity after the outstanding mortgage was in my mothers name. Neither she nor us children had the energy, interest, or time, or available cash to put into fixing it up to sell, additionally given that it was in a [now] very bad area and there would not be hardly any profit to be made. And she had absolutely NO interest in moving back in! Since mom was living on SS and pensions and in subsidized housing already, no need to worry about credit record as such, so allowed it to go into foreclosure and let the credit union eat it. No moral qualms there as they should not have loaned him the money in the first place. For a few months they kept trying to get her on some payment plan so they could avoid the hassle, but finally initiated the process. House ended up upside down by about $6000 against a $30k mtg balance. In this state they could come after her for that shortfall, but fortunately they realized it was blood from a turnip -- and at the worst she would just declare bankruptcy.

Ugh.

[bengal22]

...
Lawyers make money(5 percent at least) on estates going through probate. They make zero when an estate is transferred vis beneficiaries and POD/TOD. Makes sense that a lawyer would advise not to avoid probate.

Probating the Will is usually a small part of the work involved in an estate administration.

Except in a very small estate, a contested estate, or some other unusual situation, the legal fees for an estate administration are usually much less than 5%.

5 percent is recommended amount in Ohio and about what a lawyer quoted me for my FIL before I decided to do it myself. Maybe I just don't understand what is involved in setting up an estate for a smooth transfer. It seems simple with grown kids that get a long. But I am sure there are horror stories that should be avoided.

[LilyFleur]

My mom has POD for all of her bank accounts. Her IRA has beneficiaries. The house has TOD. The contents of the house are the only thing left to fight over. My brother and I are the beneficiaries of the will andwe have promised each other we will not fight over anything.

Sounds great. What state are you in, and how did you arrange for the house to be TOD?

I will answer this, although I did not originally post.
I live in California, and my condo is titled TOD to my two children.
I was researching California estate planning and came across this:
https://store.nolo.com/products/califor ... -deed.html
I did the TOD and filed it in person with the county.
I think a TOD is sometimes called a lady bird deed.
The legislation is fairly recent in California, and when I filed my TOD in 2017, none of my friends knew about it.

There are some limitations of TOD in California that you may want to consider, such as mental incapacity of property owner and what happens if your heirs pass away before you do and the TOD isn't updated (or can't be updated because you are incapacitated). If you own an expensive property you may still want the property in trust to help avoid these problems. Then again maybe you did consider that and decided they were not important for your situation.

Or that one of the beneficiaries of the TOD has serious financial problems which would complicate the sale of the TOD property.

I'm grateful that my mom for all of her financial problems did spend the money and time to set up a Trust (in CA). Although TOD wasn't an option in 2008 when she died had it been, I can't imagine the nightmare my brother's liens, foreclosure, divorce and subsequent child support claims would have had on the sale of her property.

Thank you for pointing this out. How did it work out with all of your brother's financial liabilities, and the trust? How much did you pay in attorney fees to take care of winding down the estate and getting the disbursements to the heirs? Was the attorney who wrote the trust the one who handled the estate? Who handled filing your mom's final tax return and the tax return for the trust? (Did you get involved in that, or did the attorney get it to the CPA for you?)
How would you imagine this would be different with a TOD deed to your mother's property? Would you and your brother have agreed to sell? Or would he perhaps have camped out in her house and refused to leave?

[Carefreeap]

.

There are some limitations of TOD in California that you may want to consider, such as mental incapacity of property owner and what happens if your heirs pass away before you do and the TOD isn't updated (or can't be updated because you are incapacitated). If you own an expensive property you may still want the property in trust to help avoid these problems. Then again maybe you did consider that and decided they were not important for your situation.
[/quote]

Carefreeap wrote:

Or that one of the beneficiaries of the TOD has serious financial problems which would complicate the sale of the TOD property.

I'm grateful that my mom for all of her financial problems did spend the money and time to set up a Trust (in CA). Although TOD wasn't an option in 2008 when she died had it been, I can't imagine the nightmare my brother's liens, foreclosure, divorce and subsequent child support claims would have had on the sale of her property.
[/quote]
Thank you for pointing this out. How did it work out with all of your brother's financial liabilities, and the trust? How much did you pay in attorney fees to take care of winding down the estate and getting the disbursements to the heirs? Was the attorney who wrote the trust the one who handled the estate? Who handled filing your mom's final tax return and the tax return for the trust? (Did you get involved in that, or did the attorney get it to the CPA for you?)
How would you imagine this would be different with a TOD deed to your mother's property? Would you and your brother have agreed to sell? Or would he perhaps have camped out in her house and refused to leave?
[/quote]

Fortunately I was the successor Trustee. Originally she wanted us to be co-Trustees and I used a little reverse psychology and told her to pick one or the other but not both. I told her I didn't care who she picked. I did but I knew if I told her I wanted to be Trustee she might pick my brother. And on the surface he would have been a good pick. He was in town and I was 350 miles away in AZ and supposedly he has been a Trust fiduciary. But oh man his financial problems! She knew he was in foreclosure...again. And knew my FICO score was in the 800s since she acted as my real agent to buy a house three years before.

Since both properties (eventually) were in the Trust's name there was no way for his creditors to know about his "inheritance" and attach her two properties. That said, he did give me a hard time about how to handle the properties. First he tried to convince me it would be a good idea for us to co-own her condo and put it in vacation rental service. He had no experience but was convinced it was a good idea. I told him no way. I advised that the association was in the process of revising the HOA docs to prohibit vacation rentals and I wasn't going to get in the middle of it. What I didn't say was no way am I going to get stuck when there's problems and you can't pay your share. I should add here that there was nearly $700k between the 1st & HELOC and the property was underwater. The other unanticipated issue is that because his utilities would get shut off for non-payment, he and his family (4 kids) would come over to watch TV. They were total pigs, spilling Coke on the carpet, chocolate hand prints all over the fridge and a pool of urine by the toilet where someone missed. I couldn't legally stop them from accessing the house until I had made my settlement with her second lender. I settled the $300k HELOC for $9,300 but it took me six months, right up to the time of foreclosure publishing.

After that he wanted me to kick out her tenant in her little 2br rental duplex so he and his family could move in. This was a 55 and older complex (he was 45 at the time). Yeah, right. No one will notice that he and his four kids have moved in with all of their cars. Mom's boyfriend lived in the other half of the duplex and he was already a grumpy old man. You can guess how long that arrangement would have lasted.

In the end I was able to give my brother 10k which he needed desperately. He still got foreclosed on but I guess that gave him enough to rent another place after leaving his wife for his high school sweetheart.

I think I spent about $2,500 in attorney's and court costs. But that was due to my mother not deeding the little rental duplex into her Trust although it was listed as a Trust asset. We had to go through an expedited probate process (which still took 6 months). No I didn't use her original attorney, I don't remember why other than it might have been her friend who had retired.

I used my mother's CPA firm to prepare both the final and Trust returns. He was aware of her tax problems and minimum payments on the tax debt. As I've mentioned in prior posts, she died owing about 40k in tax debt from prior years. I did a little research and found out that after 10 years it ages out. I kept making the minimum payments of $200/mth for 18 months and they disappeared. Sad thing was that I think she originally only owed about 15k but between penalties and interest that debt grew to $40k. The minimum payments didn't even cover the interest. I cannot imagine how stressful her life must have been.

As to how different the outcome might have been with TODs; I don't know since I didn't go through it but I can certainly imagine that having a beneficiary deed recorded in both my brother's and my name would have been picked up by his creditors and they would have filed liens accordingly. Since his debts exceeded the equity I think it would have been a mess to clean it up. I suppose he could have declined his inheritance but I still suspect that even that would have left a trail via a quitclaim deed.

I'm grateful I didn't have to find out!!!

[OnTrack]

Make a will or specify POD/TOD on everything or you make someone's life hell.

Of course, no one can step forward to become personal representative...

Even if all financial assets and real estate are jointly held or have POD/TOD/beneficiary be sure to appoint an executor/personal representative. A few reasons one may be needed that many people don't think about:
- Cashing refund checks from insurance companies, utility companies, etc.
- Forwarding mail, from USPS website: "To forward the deceased's mail to yourself or to a different address, you must file a request at your local Post Office. You will need to: Provide valid proof that you are the appointed executor or administrator authorized to manage the deceased's mail."
- Canceling cell phone plan.
- Collecting abandoned property from the state that the decedent might not have known about.

There is also the problem of a life insurance policy owned by the deceased for which the person whose life is insured is still alive. Not sure how that is handled without a will. Seems to me that there should be two types of beneficiaries, one to pass ownership of the policy and one for which proceeds will be paid upon the death of the insured person.

[Chip]

Even if all financial assets and real estate are jointly held or have POD/TOD/beneficiary be sure to appoint an executor/personal representative. A few reasons one may be needed that many people don't think about:
- Cashing refund checks from insurance companies, utility companies, etc.
- Forwarding mail, from USPS website: "To forward the deceased's mail to yourself or to a different address, you must file a request at your local Post Office. You will need to: Provide valid proof that you are the appointed executor or administrator authorized to manage the deceased's mail."
- Canceling cell phone plan.
- Collecting abandoned property from the state that the decedent might not have known about.

I'm sure it varies from state to state, but in CA if there is no estate opened there is no personal representative/executor. It doesn't matter that one is specified in the will. Without court papers of appointment the executor named in the will has no standing to act for the estate.

I handled an estate under the small estate provisions in CA where all financial assets had passed via TOD (I would have been executor, but did not open an estate and therefore was not appointed by the court). In all cases where a refund check had to be cashed, the beneficiaries of the will were the only people with "standing". They provided an affidavit that they were the sole beneficiaries of the deceased, etc., and were entitled to the check. This resulted in checks being reissued in their names.

While the deceased didn't have a cell phone, the beneficiaries had no trouble cancelling cable TV and internet service.

[OnTrack]

While the deceased didn't have a cell phone, the beneficiaries had no trouble cancelling cable TV and internet service.

Canceling cell phones for a decedent can be more difficult.
- "Sprint Harasses Grieving Mother For Two Years"
https://consumerist.com/www.consumerist ... 7.php.html
- "The Infuriating Process Of Canceling A Cell Phone Contract After Someone Dies"
https://www.everplans.com/articles/the- ... meone-dies
- "I’m Still Paying For My Dead Husband’s Cell Phone Because I Don’t Know His Childhood Friend’s Name"
" ... Recently, a customer service rep offered me this option: Drive to a company store to “authenticate” my husband’s account, bring his driver’s license, Social Security number, death certificate and our marriage license. For real. Oh, and then call him back because I clearly must have plenty of time on my hands. Mind you, they are still billing my credit card while giving me the run-around. ..."
https://www.huffpost.com/entry/how-to-s ... 078ca7292d

[Big Dog]

While the deceased didn't have a cell phone, the beneficiaries had no trouble cancelling cable TV and internet service.

Canceling cell phones for a decedent can be more difficult.
- "Sprint Harasses Grieving Mother For Two Years"
https://consumerist.com/www.consumerist ... 7.php.html
- "The Infuriating Process Of Canceling A Cell Phone Contract After Someone Dies"
https://www.everplans.com/articles/the- ... meone-dies
- "I’m Still Paying For My Dead Husband’s Cell Phone Because I Don’t Know His Childhood Friend’s Name"
" ... Recently, a customer service rep offered me this option: Drive to a company store to “authenticate” my husband’s account, bring his driver’s license, Social Security number, death certificate and our marriage license. For real. Oh, and then call him back because I clearly must have plenty of time on my hands. Mind you, they are still billing my credit card while giving me the run-around. ..."
https://www.huffpost.com/entry/how-to-s ... 078ca7292d

Personally, I see no issue with showing the telecom a copy of the death cert to cancel a legally-binding contract without penalty. That's exactly what I did when my mom passed. I called Verizon, they put a hold/stop on the number and sent me a form and envelope to enclose a copy of the certified death certificate and mail them back. (no fuss, no muss) Note, they did not require an original certified copy, but just a black and white copy of a certified dc.

[OnTrack]

While the deceased didn't have a cell phone, the beneficiaries had no trouble cancelling cable TV and internet service.

Canceling cell phones for a decedent can be more difficult.
- "Sprint Harasses Grieving Mother For Two Years"
https://consumerist.com/www.consumerist ... 7.php.html
- "The Infuriating Process Of Canceling A Cell Phone Contract After Someone Dies"
https://www.everplans.com/articles/the- ... meone-dies
- "I’m Still Paying For My Dead Husband’s Cell Phone Because I Don’t Know His Childhood Friend’s Name"
" ... Recently, a customer service rep offered me this option: Drive to a company store to “authenticate” my husband’s account, bring his driver’s license, Social Security number, death certificate and our marriage license. For real. Oh, and then call him back because I clearly must have plenty of time on my hands. Mind you, they are still billing my credit card while giving me the run-around. ..."
https://www.huffpost.com/entry/how-to-s ... 078ca7292d

Personally, I see no issue with showing the telecom a copy of the death cert to cancel a legally-binding contract without penalty. That's exactly what I did when my mom passed. I called Verizon, they put a hold/stop on the number and sent me a form and envelope to enclose a copy of the certified death certificate and mail them back. (no fuss, no muss) Note, they did not require an original certified copy, but just a black and white copy of a certified dc.

- In the first case, the decedent was a son without a bank account (and probably no or few assets) however the company insisted the the mother was responsible. However, when the son was alive, the company would not let her pay the bill without first putting her son on the line to give his permission for her to pay his bill.
- In the second case, even after taking a death certificate and funeral bills they refused to cancel the contract.
- In the third case, as I quoted she had to drive to a store and bring not just a death certificate but also a driver’s license, Social Security number, and her marriage license.
- Also, it can take several weeks to obtain a death certificate and meanwhile the account charges continue to accumulate.
- I think one reason canceling cell phone bills of a decedent is difficult is to avoid fraud or someone maliciously closing another person's account. But that doesn't justify some of the problems cited above.

[Big Dog]

yeah I read them, but I also read the fine print:

1) "They wanted me to send them a copy of the death certificate. I told them that what needed was public information and they could go get it themselves if they needed it so bad." In other words, the parent refused to send in a copy of the death certificate. Well ok, but then don't whine about it later. (There is another issue here in that no one under 18 can sign for a telecom contract. Either the telco made a mistake and gave the kid a phone, or someone older co-signed the deal. That would raise an immediate question of any first level CSR.)

2) the second case was in the UK, and I have no idea (nor do I care) about estate laws in the UK.

3) in the last case, just need to ask for a Supervisor.

Yes, it can take weeks for an official death certificate, but any additional charges/fees are on them and will get waived when the dc is presented.

Regardless, having an executor/will ain't gonna make these issues go away.