Are problems created from planning to have an inheritance skip a living generation? (me) I believe I am well-off enough from a retirement perspective. I was considering asking my Father to change his will so my children would get his inheritance instead of me. Skipping me. To simplify the question: I'm asking about things that pass via a will (Some things like life insurance don't) No perceived need for a trust for the children I will be alive when my Father dies, and will not contest it. Just Federal considerations (since states vary) This is to help me plan before talking to a $/hour attorney (who will write a state-specific will) His estate may or may not be above the threshold for Federal taxation at the time of his (future) death. Are there reasons which indicate my Father should not do this? I don't see any (good) reasons, but I know just enough about law to know that when I think something is obvious... it often isn't. I'm interested in hearing about things that I should think through because they are either likely or they are unlikely but have big negative consequences. For example I heard years ago that there could be absurdly large (50%+) additional taxes, but even if that were correct (then) the tax laws have likely changed a number of times since I heard this. Or perhaps it is a big deal if I die before he does? (I have no reason to expect this)
The only time it is relevant is when an estate is subject to the Generation Skipping Transfer Tax. But, the exemption from the tax is currently (as of 2019) $11,400,000 per donor per lifetime, so if the expected inheritance is less than that amount there is not a tax issue. When I started practicing law (in 1995), the exemption was $600,000, so it affected a lot more people. All aspects of inheritance are governed by state rather than federal law except the income tax, estate tax and generation skipping transfer tax issues. Otherwise this is permitted under U.S. law in every state (some countries, such as Mexico, only allow a child to be disinherited by a Will for dishonoring the parent in some way or predeceasing). Many people intentionally devise an inheritance plan (in the narrow sense this would be a bequest or a devise, and an inheritance is what you receive from someone without a will, but there is also a broader sense of the word) along the lines that you are suggesting.
The child C cannot receive anything as a "gesture despite the Will" if everything in the Will is left to B; unless B agrees to a Deed of Variation the Executor is legally bound to follow the instructions in the Will. C may have a claim if he is dependent on A at the time of A's death and A has failed to make provision. It is possible that A's sibling S might also have a claim if dependent. Although you have tagged the question as United Kingdom, inheritance and intestacy law differs widely between England and Scotland. Such a Will should be drafted by a specialist trust and executry planning solicitor to avoid the risk of contentious probate.
If it looks like a gift and sounds like a gift and there is no evidence that it should not be considered a gift, well, what else could it be? Given the value of a house and depending on jurisdiction, there may be a gift tax involved. This is normally an obligation placed on the giver, not the receiver. It is unlikely to be a concern to you but a separate check would be wise for your own sake. If all ownership documents are clear that you and you alone own (and pay regular costs of, and maintain) the house, it is extremely unlikely that any private individual can take it away from you, regardless of their relationship to you. There doesn't appear to be any legal basis for their claims; they are hoping you will bow to social and emotional pressure. Your best course of action is to call their bluff. Request a written statement (ideally through their lawyer) that identifies the reason for their claims of ownership or otherwise why the property should be transferred to them (ideally checked by your lawyer) and proceed from your lawyer's advice.
The seminal case on this was Riggs v. Palmer, 115 N.Y. 506 (1889). A grandson stood to inherit a sizeable estate from his grandfather and, concerned that the will might change, killed his grandfather. In the united-states most jurisdictions have passed &quot;slayer statutes&quot; to prevent the killer from taking under the will. In Maryland, one who &quot;feloniously and intentionally kills, conspires to kill, or procures the killing of the decedent&quot; is barred from inheriting or otherwise benefiting under the will. See Md. Est. &amp; Trusts Code § 11-112. Manslaughter is a felony in Maryland. See Md. Code Crim. Law § 2-207. So if a particular instance of manslaughter involves intent (e.g. the grandson intentionally kills the grandfather following some adequate provocation), the slayer statute should bar taking under the will. But if it doesn't, the killer wouldn't be disqualified. Wikipedia adds: The Maryland slayer rule is harsher than most other states. In addition to prohibiting murderers from inheriting from their victims, Maryland's slayer rule prohibits anyone else from inheriting from murder victims through their murderers; Maryland's slayer rule is thus similar in structure to corruption of blood. For example, a mother leaves her son $50,000, and leaves her son's child (her grandchild) $100,000. She leaves her residuary estate (i.e., whatever else is left of the estate) to her daughter. If the son kills his mother, then under Maryland law, the son's child will inherit the $100,000; however the son's $50,000 (which is also the indirect inheritance of the grandchild through his father), is not available under Maryland law to either the son, or his child. The $50,000 becomes part of the mother's residuary estate and goes to the daughter.
Short Answer If everything was set up correctly in the first place, it is probably unnecessary to open up either an informal probate case or a formal probate case, although it may be necessary to prepare a small estate affidavit. But, there aren't enough facts in your question to know for sure. There are also a couple of documents that have to be filed or recorded with regard to the trust, but those documents aren't part of either a formal probate or an informal probate. If there is a will, however, (and it appears that there is) it needs to be lodged with the court even if there is no formal probate and there is no informal probate. You Are Almost Surely Confused About The Facts Family trust was set up with: a quitclaim deed transferring the home into the trust, and a parent's pourover will that left the home first to a single beneficiary, and second, if that beneficiary died then to other beneficiaries. If it was set up this way, somebody made a serious mistake. (Your mention of a holographic will worries me because it suggests that somebody didn't use a lawyer to set this up in which case they probably screwed it up.) But, I suspect that you misunderstand the situation. Normally, you would set up a revocable trust (also known as a &quot;living trust&quot;) and quitclaim the home into the trust, and use a bill of sale to transfer all tangible personal property into the trust, and title all bank accounts and investment accounts in the name of the trust. Then, the provisions of the trust (not the will) would say which beneficiary received the trust's assets. Assets in a trust are governed by the terms of the trust and the terms of any will are disregarded with respect to the assets in the trust. A pourover will, by definition, is a will that leaves any property that is not in the trust on the date of death to the trust (which ceases to be a revocable trust and becomes an irrevocable trust upon the date of death). A pourover will is only used if there are assets on the date of death that are not titled in the trust and that do not pass by another non-probate transfer (i.e. a beneficiary designation or a joint tenancy with right of survivorship or a lifetime transfer to a beneficiary before death or property in a trust created during life). A will has no authority to direct the disposition of property that passes via a non-probate transfer. Instead, a will only applies to probate property. Probate property is property owned by the dead person which does not have a beneficiary designation or survivorship provision and is not in a trust. Lodging The Will If there is a will, it must be delivered to the court of general jurisdiction in the county where the person who died resided by the person who is in possession of it, within a certain number of days after the death of the person who wrote the will, even if there is no need for a formal probate or an informal probate, and even if the person who is in possession of the will doesn't know if it is valid or not. When Is Probate Required? Possibility One: There Is No Probate Property Ideally, all property would be in the trust as of the date of death. In that case, there would be no probate (informal or formal), because property in a trust is one kind of property that passes via a non-probate transfer. All property that does not pass by a non-probate transfer is probate property. Possibility Two: There is no probate property which is real estate and all of the probate property combined is worth $42,000 or less. If there is probate property, then you have to determine if a probate proceeding, either formal or informal, is required, or if instead probate can be dispensed with entirely. If the total amount of probate property is less than the amount of the exempt property and family allowance amounts under the probate code (Title 75 of the Utah Statutes) (which is $42,000 as of 2010, although it appears from the Utah State Legislature website that this has not changed since 2010), and there is no real estate that is outside the trust, then the probate property may be transferred by a small estate affidavit of the person named as personal representative (PR a.k.a. executor) in the Will without opening up an informal probate or formal probate, if all of the people whose consent is necessary to make the transfer (such as the DMV for a car, or a bank handling a final paycheck or tax refund) will accept the affidavit in lieu of letters testamentary. If a small estate affidavit is sufficient to transfer all of the probate property in this situation, then there is no probate proceeding, formal or informal. Possibility Three: There is probate real estate, or there is probate property worth more than $42,000, or someone in control of probate property refuses to accept a small estate affidavit. If there is real estate outside the trust, or if the total value of the property outside the trust that does not pass by non-probate transfer is worth more than the combined exempt property amount and family allowance (i.e. if it was more than $42,000), then you must probate the will, either formally or informally, and have the PR appointed by the court registrar. Then, as PR, the PR can transfer all of the probate property to the trust and close the estate. The only time that a will can have any validity, in the absence of an informal probate or a formal probate, is when the estate qualifies for a transfer by affidavit. And, in practice, lots of third parties other than the DMV will balk at accepting an affidavit, so it is usually easier to simply do an informal probate, than it is to bother with an affidavit. Formal v. Informal Probate When Probate Is Required Informal Probate An informal probate is very easy, although you should still have a lawyer at a minimum assist you in filing it and in closing the estate when you are done. There are standard court forms to commence an informal probate that are mostly pretty straightforward to fill out, and once the forms and original will are delivered to the court of general jurisdiction where the person who died resided the clerk in charge of probate cases called the Registrar reviews it and if everything is in order, immediately stamps them and gives the PR his or her &quot;letters testamentary&quot; (that give the PR the authority to transfer the property to the trust) without holding any hearings or even talking to a judge. An informal probate is only allowed if there are no disputes in the case regarding the validity of the will or the appointment of the person named in the will to be the PR. An absence of dispute is shown in an informal probate by having everyone with a right to dispute the will or the PR appointment sign a consent form which is included in the package of forms submitted to the court in an informal probate. The letters testamentary issued to the PR in an informal probate expire when the probate case is closed, which is done by filing a one page court form with the court that certifies that all of the probate assets of the person who died, and all of the debts of the person who died, have been taken care of by the PR. A case that starts out as an informal probate can be converted to a formal probate if after letters testamentary are issued by the registrar in the informal probate (which often happens the same day that the case if filed), someone contests the will before the case is closed. When that happens, everyone starts over from scratch to determine if the will is valid and if the right person was appointed as PR, but in the meantime the person appointed informally continues to act as PR in a caretaker capacity (without making any distributions to heirs or devisees) until the validity of the will and the validity of the informal appointment of the PR is resolved. Formal Probate A formal probate is only necessary if (1) there is a dispute regarding the validity of the Will, or (2) regarding the person entitled to be PR, or (3) if the Registrar (i.e. the clerk of the court in charge of probate matters) in the Registrar's sole discretion feels that it doesn't smell right and refers it to a judge. Realistically, formal probates are only brought when (1) there is a bona fide dispute over the validity of the will or (2) when someone with a right to contest the will can not be located to sign off on a consent or can't be bothered to sign and return it. When probate cases are filed they are filed formally maybe 5%-10% of the time and bona fide disputes are only present maybe 1%-2% of the time (less than 20% of formal probates). If there is not a bona fide dispute, a formal probate is really just a pro forma bump in the road and is no big deal. Your lawyer schedules a hearing, gives formal notice to everyone entitled to notice (basically all family and anyone named in a current or prior will who is still living), lines up a witness or two, and if anyone file a will contest, actually conducts the hearing. If no one files a will contest, then the judge, issues letters testamentary to the PR, and the remaining probate case is no different than an informal probate. If someone does file a will contest, then the judge conducts a will contest hearing (with a jury if one was demanded in the will contest) and if decides which will, if any, is valid and who is entitled to be the PR. A pretty hotly contested will contest trial before a judge without a jury lasts about two or three days (usually after a few months to allow the parties to prepare for the trial). Once letters testamentary are issued and a PR is appointed following that hearing, a formal probate is the same as an informal probate. Supervised Administration. In very rare cases, maybe one in 200 to one in 500 cases, there are heated disputes about almost every issue related to administering the probate estate and a party requests and is granted permission to conduct a supervised administration. It is possible to have a supervised administration even in an informal probate, if there is no dispute over which will is valid, or who the PR should be, but there is great dispute over how the PR should handle the administration of the probate estate that posting a bond isn't sufficient to address. In a supervised administration, the PR must obtain pre-approval from the judge to do anything (which is how probate usually works in states that didn't adopt the Uniform Probate Code the way that Colorado and Utah did). This is much, much more expensive. What Formalities Are Necessary For The Trust Whether or not there is a probate proceeding or a small estate affidavit, if there is a trust, the trust must comply with certain formalities. If no probate is required, but there is a trust, the trustees by a deadline set in the Utah Probate Code have to file a &quot;trust registration statement&quot; which states the date that the trust became irrevocable (usually either the date it is formed or the date the person creating it died), the name and contact information of the trust, and the county where the trust records are kept which is also the county were the trust &quot;resides&quot; for lawsuit purposes. The trust must also obtain a taxpayer identification number from the IRS and file Tax Form 1041 and the parallel state tax form every year that it has more than $600 of income. In connection with a transfer of real property out of the trust, the trust will need to prepare and record in the real property records of the county where the real estate is located, in addition to the deed, a document which is basically an affidavit, proving that the person who is signing the deed as the trustee is really the trustee and authorized to sign the deed.
If you buy a house and your wife signs a quitclaim deed to you, that transfers to you whatever rights she has in the house. Similarly, if you and your wife sign an agreement that anything deposited in a particular bank account in your name would be your separate property, that would override the pre-nup as far as that account was concerned. Such an agreement could include a dollar limit per month or per year, or an explicit purpose, such as savings for a down payment. (It could be thought of as a gift to you of her share of any funds deposited.) Giving property to your parents or others with the understanding that it will be returned on your request might be seen as an attempt to evade the pre-nup, and a court might hold that the property was actually shared, if you ever do divorce. There might also be gift tax issues if the value is high enough. Whether asking your wife to agree to a quitclaim or any sort of agreement to modify the pre-nup would help or harm your marriage I cannot know, nor did you ask that. But I would think that for most people being open would work better than going behind a spouse's back. None of this should be taken as legal advice. I am not a lawyer.
Beware: The details will depend not only on jurisdiction, but also on the details of the parents, the parenting agreement and, of course, on the situation of the child. However, here are some general guidelines (mostly independent of jurisdiction): Ideally, you should resolve the problem by non-legal mechanisms. However, you may have to resort to legal means if this fails. I would advocate a gradual escalation of your reaction: First, do not assume malice. Nicely ask parent A why the plan was not followed. Maybe it was a simple oversight, maybe there was an emergency? Try to find out, and decide whether the change was warranted. If there is no satisfactory answer, clearly remind A that the parenting plan is binding for everyone, and that it is important for both the child and the parents that they can rely on it. Stress that any last-minute changes must be discussed as soon as possible, even in emergencies. This should be done in writing, maybe even by registered mail. If the problem repeats, send a last letter indicating that you will seek legal remedy if the problem persists. This letter may work better when sent by a lawyer. A letter from your lawyer to A's lawyer (assuming you both have one) may also prompt A's lawyer to explain to A that they are hurting the child and themselves by violating the parenting plan. Finally, if all the above fails, go to court. You could ask for a change in the parenting agreement, maybe with less frequent changeovers, or with changeovers that are easier to arrange, or at an earlier time, such that a delay causes less problems. You could also ask for a formal permission to have the child fetched by the police or similar on subsequent violations (though that is a rather desperate option, and may not be available). If you reach this point, following the previous steps should give you a fighting chance to prevail in court, as you have demonstrated that you tried everything to make the agreement work. Courts generally take a dim view of people who violate an official agreement. In Georgia specifically, like in most US states, violation of a court-ordered parenting agreement by one parent is a serious matter. The other parent can ask the court to hold the parent in contempt of court. The court can then order a number of consequences for these violations, such as awarding the other parent extra visits or monetary compensation, up to and including sending the parent to jail (this only happens in extreme cases). The article Violation of Custody and Visitation Orders in Georgia gives a good overview.
That really sucks. I've had similar experiences when handling the probate proceedings of lawyers who were not good about returning original wills to clients. I am providing an answer under general principles without researching Oregon specific accounting, record retention and probate laws, to at least give you a start although I recognize that a better answer would research these questions. The accounts/clients from her business were sold to another woman. Is it legal for us to transfer everything to her possession? Probably yes. There should be a government agency in Oregon that regulates accountants that has rules regarding that question. The linked rule seems to govern this situation. It says in Rule 801-030-0015(d) that: (d) Custody and disposition of working papers. (A) A licensee may not sell, transfer or bequeath working papers described in this rule to anyone other than one or more surviving partners or stockholders, or new partners or stockholders of the licensee, or any combined or merged organization or successor in interest to the licensee, without the prior written consent of the client or the client’s personal representative or assignee. (B) A licensee is not prohibited from making a temporary transfer of working papers or other material necessary to the conduct of peer reviews or for the disclosure of information as provided by section (1)(b) of this rule. (C) A licensee shall implement reasonable procedures for the safe custody of working papers and shall retain working papers for a period sufficient to meet the needs of the licensee’s practice and to satisfy applicable professional standards and pertinent legal requirements for record retention. (D) A licensee shall retain working papers during the pendency of any Board investigation, disciplinary action, or other legal action involving the licensee. Licensees shall not dispose of such working papers until notified in writing by the Board of the closure of the investigation or until final disposition of the legal action or proceeding if no Board investigation is pending. So, a transfer to a successor firm appears to be permitted. What if she refuses to take the documents? Her probate estate could retain them and stay open, they could be returned to clients, or there could be a rule established by the Oregon body that regulates accountants that authorizes a central depository of such records. In Colorado, for example, in the case of law practices with no successors, original wills and estate planning documents can be deposited in the records of the court with probate jurisdiction that has jurisdiction over the territory where the decedent's practice was located. But, I could not locate any provision of this kind in Oregon law. Is it legal for us to destroy/shred/etc. the documents? In many cases, yes. Some states, by statute or regulation, and others by custom, allow business records to be destroyed as a matter of course, normally one year after the longest statute of limitations that could apply to a dispute where the records would be relevant (often seven years since the longest normally applicable tax statute of limitations is six years). Destroying tax returns is usually not a big concern because a transcript of the old tax returns can be ordered from the tax collection agency where they were filed. But, business records related to purchases of property and capital improvements and depreciation, and related to divorces, can be relevant for decades after they were created, so the more honorable course of action would be to make at least a cursory effort (such as a postcard sent to a last known address of each client with a deadline for requesting a return of their file) to return the files of clients that include original business records as opposed to mere copies of tax returns. Oregon has a seven year retention rule for most purposes pursuant to Rule 801-030-0015(e) which is linked above: (e) Retention of attest and audit working papers. (A) Licensees must maintain, for a period of at least seven years, the working papers for any attest or compilation services performed by the licensee together with any other supporting information, in sufficient detail to support the conclusions reached in such services. (B) The seven-year retention period described in paragraph (A) of this subsection is extended if a longer period is required for purposes of a Board investigation as provided in paragraph (d)(D) of this rule and OAR 801-010-0115(3). The referenced rule in that rule states: (3) Requirements upon resignation. Upon resignation, a former licensee is required to: (a) Surrender the CPA certificate or PA license to the Board; (b) Take all reasonable steps to avoid foreseeable harm to any client, including but not limited to providing written notice of resignation under this section to all clients and inform all clients of where client records and work papers will be stored and of the clients’ right to secure copies of all such records and work papers at no cost to the client; (c) Maintain client records for a period of at least six years, or return such records to the client; and (d) Continue to comply with the requirements of OAR Chapter 801 Division 030 pertaining to confidential information and client records. (e) For the purpose of subsection (b) above and unless otherwise required by the Board, a resigning licensee of a registered firm is required to give written notice to only those firm clients for which the resigning licensee was the sole or primary CPA on an engagement, an engagement leader, or the client relationship manager. In practice, the consequences of destroying a record that shouldn't have been destroyed are likely to be minimal, because any recovery would be limited to the assets of the estate and there is a time limit for making claims against estates which is quite strict, and your grandma has no license to revoke. But, again, the honorable thing to do in order to honor her legacy and do right by her former clients would be to either transfer the records to a successor firm or to attempt to return them, as she would be required to do if she had surrendered a license during life.