How to exclude somebody from being a guardian in a will? My wife and I are completing our last wills and testaments. We have named 3 guardians for our children in case we pass away (the guardians are in descending order, so the first has priority etc.). We also want to state in our wills our preference that some of our relatives should not be considered as guardians (they were horrible parents themselves and have criminal history). I have read here (Is it possible to exclude individuals as guardians?) that it is not possible to completely exclude someone from being a guardian but that our wishes can be stated. My questions are: a) should we include such wishes in the main document of our wills or in a separate letter to the court (obviously, we would share this letter with all of our guardians so that the letter can be brought forth if needed)? b) which language could we use to state our wishes? Do you have any template paragraph or document? Also, should we document why we believe the above-mentioned relatives are incapable of taking care of our children or just state that we believe they are? Thanks.
OK, I talked to a lawyer (in Massachusetts) and these are the answers I got. One can draft a confidential exclusion letter to state wishes regarding excluding certain people from being guardians. In the letter you can explain in detail why you think somebody is unfit to be a guardian. Execute this document as you do for your will and tell your family that it exists so that they can access it if you die (or give them a copy). The advantage of a stand-alone document is that it is not public, differently from the will which is public. The lawyer also suggested to also have a separate stand-alone guardianship document (and so to not include the guardian section in the will). The reason is that a will can be executed only if somebody is dead. But if somebody is e.g. in a coma (or missing), he won't be able to take care of his children and yet his will would not be able to executed. A separate guardianship document would instead apply also in these situations thereby minimizing the chances that somebody, whom you do not consider fit, becomes a guardian of your children.
There is no requirement that a will, or a trust created by a will, be "fair". The will could have left $500,000 in trust for one set of siblings, and $5,000 to another set. It could specifically exclude one beneficiary from some of the benefits, or specify an unequal division. That is all the choice of the testator. As described in the question, the trust does seem likely to give greater benefits to one set of children than to their cousins. Unless there are grounds to upset the will, that is just how it is. However, the wide "absolute" discretion granted to the trustee might allow the trustee to modify this outcome, but the trustee is not allowed to simply rewrite the trust. How much the payments can be varied will depend on the exact terms of the trust. It does sound as if this trust was not worded as carefully as it might be, since it does not specify a ration when the trust is to be split. The designated relative can decline to serve as trustee, then any specified alternate would serve, or if there is none, or none who will serve, the court would appoint a trustee.
The language is worded broader: &quot;A victim of [list of crimes] or that victim's representative shall have the following rights as provided by law:&quot; The list is seemingly alphabetically, and covers besides arson injuring people, also aggravated arson &amp; battery, misuse of explosives, negligent use of a deadly weapon, murder, [two other types of homicide], kidnapping, [various types of sexual misconduct], [two types of hit and run], [two types of child endangerment]. That is a closed list, that gives the victim or his representative (estate or legal guardian) the rights enumerated after.
The executor must follow the will The executors legal duty is to execute the testator’s intent as detailed in their will. While I have no doubt that you understand the testators verbal wishes as expressed to you on a particular day - how do you know they didn’t change their mind some time after that? As others have said, with the beneficiaries’ agreement you can override the express written wishes but if one or more don’t agree, you will have to follow the will. To do otherwise exposes you to personal liability if a disgruntled beneficiary sues. The will is your shield, you step out from behind it at your peril. Now, the beneficiaries may be perfectly happy with the verbal intent now but … when there is money on the table, they may see it differently. Do yourself a favour, have the difficult conversation and get the will changed or refuse to be the executor.
Based on some quick searching, this would likely be a wrongful death action. I have to pick a state, so I'll pick Nevada. The first question is what damages could be. I don't know offhand what is typical in wrongful death suits, but this appears to be beyond mere negligence: there was a hit and run involved. I have no trouble believing the claim would reach at least six figures. This is important, because federal diversity jurisdiction only includes lawsuits with over $75,000 at stake. Now, Santa Claus's citizenship matters; if he were stateless it'd be an issue, but he is a citizen of Canada. That means that federal court has diversity jurisdiction: because the lawsuit is between a citizen of one state on one side and a foreign citizen on the other (no state has citizens on both sides of the lawsuit), and meets Congress's extra requirements (enough money at stake), it can be in federal court. The way diversity jurisdiction works is that the plaintiff can file in federal court, but if they choose to file in Nevada court then the defendant can remove the case to federal court. Either party can get it into federal court. Conventional wisdom is that federal court is more defendant-friendly than state court on state law claims. It is likely that if Grandpa files the case in any court in Nevada, the case will end up in the United States District Court for the District of Nevada. But suppose it is in state court? Most states don't have separate "county court" and "state court" systems; county courts are a thing, but they're a specialized thing and the serious stuff is not in those. A six-figure wrongful death claim won't go in Nevada's equivalent of small claims court. It'd go in Nevada district court, if it's in state courts. But what about other courts? Grandma was walking home, so it can be assumed she was a Nevada resident. Assuming Grandpa lived with her (which is rather likely), so is he. They then can't sue in any US state other than Nevada without being laughed out of court -- a lawsuit needs to have something to do with where you're suing. The other option is Canada, but such a suit is unlikely.
Whether any person, provided that they are in full legal capacity (not a minor, not incapacitated etc.), needs a lawyer, is to be decided by that person. Even criminal defendants can be self-represented if they've got the balls for it — the law does not impose a requirement to have a lawyer when the person does not want it. Considerations as to whether to have a lawyer are very fact-specific and person-specific. Assuming that Steve is not literate in law, it would probably be good idea for him to get a lawyer before answering any questions. The facts are such that it is not totally impossible that he may be charged, especially if he inadvertently says something not in his favor, or otherwise says something favorable to McRobberface.
I believe non-probate assets are specific gifts you call out -- in the Will -- that are designated for specific beneficiaries. Little Jimmy gets the old pair of lucky Yankees socks, Little Suzie gets the old, decrepit, half-eaten turkey sandwich that Babe Ruth once took a bite out of, etc. This is incorrect. Every transfer arising from a will is a probate asset, because probate is the formal legal process of determining if there was a will, and if so, which will applies, and then distributing the assets of the person who died in accordance with that will (or with the determination that there was no will). I'm guessing things like: 401ks/Roth IRAs Life Insurance policies Savings accounts Stock market investments Houses, land &amp; real property ...could all be probate assets if one does't specifically gift them to a Beneficiary? A 401k/Roth IRA with a beneficiary designation (other than the owner's estate), a life insurance policy with a beneficiary designation (other than the owner's estate), a savings account or stock account or investment with a joint owner or a pay on death beneficiary (other than the owner's estate), or real property with a transfer on death beneficiary or a joint ownership with right of survivorship is a non-probate asset. Any of those assets if there is no beneficiary designation, if there is no pay on death beneficiary, if there is no joint owner with right of survivorship, if it is not owner through a trust, and if there is a beneficiary designation that names the owner's estate, is a probate asset. The General Rule Anything subject to allocation and distribution in a will, or by intestate succession is a probate asset. Specifically devised property in a will is a probate asset. A non-probate assets is something transferred pursuant to a beneficiary designation, pay on death provision, joint ownership with right of survivorship, tenancy by entireties, or provision in a trust existing prior to the death of the decedent. These assets are not dealt with through the probate court process. However, if a will purports to specifically devise property that has a beneficiary designation or pay on death beneficiary or is owned by a trust or is in joint tenancy with right of survivorship, then the non-probate transfer prevails over the inconsistent language in the will. See also: Examples of Non-Probate Transfers Used in Estate Planning The following are examples of non-probate transfers commonly used in estate planning: Passing property to beneficiaries through a living trust. Leaving funds to a beneficiary named on a pay on death account or transfer on death account. Leaving funds to a beneficiary named on a life insurance policy. Leaving funds to a beneficiary named on an IRA, 401k or other retirement account. See financial planning. Holding title to property as joint tenants or tenancy by the entirety. Leaving motor vehicles to a transfer on death beneficiary. Gifting assets to heirs during your lifetime so the assets do not pass as part of your estate. Executing and recording a transfer on death deed naming a beneficiary to inherit your real estate. (Source) The American Bar Association devotes a full chapter length treatment to discussing the difference. It begins: Upon death, a decedent’s estate includes both probate and nonprobate assets. Probate assets are those that pass to persons identified in a will (see Chapter 3 for a discussion of wills), whereas nonprobate assets pass outside an estate’s administration. Examples of traditional nonprobate assets include qualified and nonqualified retirement plans, individual retirement accounts, and life insurance policies. However, nonprobate assets can also include certain checking and savings accounts, certificates of deposit, investments, and even real property, but only if a beneficiary is designated and state law allows for such an asset to pass outside of an estate’s administration. Nonprobate assets are frequently referred to as “will substitutes.”
Since Probate had already closed (12/20), is it legal for the Probate court to, in essence, change the terms of the will? I have several witnesses willing to provide affidavits to the effect that my mother, the deceased, made it clear that I would get the real-estate and that the grandson in question would get nothing. Often, for a relatively short period of time after an estate is closed, it can be reopened and the judgment closing the estate can be set aside for good cause. This is also true in most other kinds of lawsuits. if I cannot beat this challenge, can I remove myself as beneficiary and have the Probate court declare that all 5 blood-related grandchildren will get equal shares? Removing yourself as a beneficiary is called filing a &quot;disclaimer&quot; in legalese. It means to refuse to accept a gift or inheritance. But you can't do that if you have already received any personal benefit from the estate and there are other statutory restrictions. For tax purposes, the deadline to do is nine months after the date of death, but the state law deadline could be different. What would happen if you do so depends upon the language of the will. Usually, gifts to a group of people are made &quot;per stirpes&quot; (also called &quot;by representation&quot;) which means that if a child predeceases or makes a timely disclaimer that their children share in the share that their parent would have received only. It is possible that it says something different, but that would be by far the most common provision. Under the original Probate interpretation, when the real-estate sold, I invested the proceeds in the stock market and there have been losses. If the challenge wins, will I have to come up with the delta--since the investment losses occurred under the original interpretation? If you had the authority to sell the real estate (which you probably did if a third-party title company went through with the transaction), then their claim would almost surely be limited to the proceeds of the real estate and not &quot;the delta&quot; unless the person entitled to take could show that you breached your fiduciary duties in the manner in which you invested the proceeds, for example, by investing all of it in a small number of penny stocks, rather than a diversified portfolio suitable for the purposes of the estate. Also, there is a question over whether the stock investment was made by you as the executor, and was subject to fiduciary standards, or was instead made after it was distributed to you outright. Further, there is the question of whether the estate can actually be opened if you gave notice of the closing of the estate to everyone who was entitled to it, including the grandchild, and whether the grandchild was entitled to it. You really need to hire a WV lawyer who handles probate cases at this point and would be doing yourself great harm by trying to represent yourself. Probate procedures are too arcane for you to reasonably have faith that you are doing it right for yourself.