I was recently talking to a daughter whose mother had passed away. She told me that her step-father made a comment after the funeral that nothing would be probated or nothing would be changed until after she died.
I started to question the daughter, because I could tell that she had basically just taken his statement as fact and wasn't planning on doing anything at all as a result of the passing of her mother.
I learned pretty quickly that her mom and step-dad each had all of their own assets in their own names alone. The step-father did own a life estate in the property that mom and step-dad had lived in; at his passing, it would go to the daughter.
I explained to the daughter the difference between probate and non-probate assets. A probate asset is an asset that is in the individual's name alone, and upon their passing must go through the probate process according to the terms of their Last Will and Testament to the individuals who are named in the Will. A non-probate asset is an asset that transfers outside of probate, meaning that it transfers by operation of law to the individual, and not through a Will.
In this particular circumstance, it was clear that the step-dad absolutely had a life estate in the property and was allowed to live in the property during his lifetime, so long as he was not living with another woman.
However, I did not agree that all of the others assets would just stay where they are. Due to the fact that they were not jointly owned by mom and step-dad, but rather were in the mother's name alone, then they had to go through probate.
When I looked at the mother's will, 100% of her estate went to the daughter. Based on this information, I told the daughter, much to her surprise, that she did need to open an estate as the executrix of the estate, and that 100% of the assets would go to her and not to the step-dad.
She wanted to know if she needed to give any of those assets to step-dad, and I said, not by law, as your mom provided 100% for you. It seemed obvious to me that mom wanted step-dad to have a place to live, but that otherwise he was able to take care of his own needs.
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