by Tina Seymour Demoran, Esquire
Let’s review a few probate cases I’ve seen just this year that required probate and court intervention:
· A husband passes away, but the deed to their home was not set up to transfer automatically to the wife.
· Both parents passed away with multiple pieces of real estate, to include their home, that were not structured for an automatic transfer to heirs.
· A parent remarried, died without a will, and failed to ensure that the children were provided for…and the brand new spouse is now trying to take the marital home as their own.
· A person passed away with a will that had not been updated in over three decades…and all of the named heirs and beneficiaries were deceased.
· A person created a deed ten years ago that would automatically give her children her home when she died…then remarried…and died after two years of living in her home with the husband, who now refuses to leave and let the children have the home.
In every scenario but the last one, an estate plan that included deeds structured to transfer the real property on the person’s death (we’re talking less than a thousand dollars worth of work, my friends–sometimes even just a few hundred dollars worth of work) would have kept the estate out of the court system.
In the last scenario, a prenup stating that the husband understood the house was to go to the kids and that he would make no “Widower’s Claim” on the marital home in the event of the wife’s death before the wife married her new husband, would have given the children the right to take possession of their mother’s home after her death.
Instead, he has the legal right to stay in the home until he dies, remarries, allows the residence to fall into serious disrepair, or willingly gives up the residence.
In the other scenarios, EVERY ONE OF THOSE CASES required that a probate case be opened in chancery court before the assets could be distributed, and the distribution may not be done in the way the deceased person would have wanted theirs assets to be distributed.
Let’s review what I’ve stated in earlier columns:
· By law, Mississippi does not allow a person to open probate without hiring an attorney.
· There is no getting around this one. It is Mississippi law.
· The simplest of things can make an otherwise smooth transfer of assets head to court and require probate.
· The simplest probate cases can run into the thousands of dollars.
· The simplest probate can also take 6 months or more to open and close.
· If an attorney has to prove intent of the Testator (that’s you when you die), it’s going to be done at an hourly fee.
· If it’s contested, additional hearings, medical professional witnesses (who can cost more than the attorney by the hour), and additional client meetings will be required.
· That amount doesn’t include depositions, travel to and from the courthouse, the probate paperwork, etc.
· You also leave your assets open to creditors who may not otherwise have had access to your estate.
· You could make mistakes that could have been prevented with a simple estate planning session with a lawyer.
So…..do you have questions about what happens to your home when you die?
Need answers to questions regarding your estate, your children, and your legal needs?
Then come to our FREE ESTATE PLANNING Seminar, which will be held on Tuesday, May 14th at 5:30 p.m. at the St. Martin Library, located at 15004 Lemoyne Blvd., Biloxi, MS 39532.
Free estate planning information will be provided.