Does this require probate? Let's assume that Bob and Abby are a married couple. Bob's will leaves everything to Abby. Bob has a brokerage account solely in his name with no TOD on the account. Bob then dies. It is my understanding that for Abby to get the money, you have to go through probate. Am I right about that? I have been told that when you are leaving everything to a spouse you can skip probate. I am thinking that is wrong. Bob should have had a TOD on his account but he did not hence in this case, probate is required.
Bob's will leaves everything to Abby. Bob has a brokerage account solely in his name with no TOD on the account. Bob then dies. It is my understanding that for Abby to get the money, you have to go through probate. Am I right about that? Yes, this has to go through probate. I have been told that when you are leaving everything to a spouse you can skip probate. I am thinking that is wrong. You are correct. This said, in a very small dollar estate (e.g. $20,000, with the actual dollar amount varying state by state), some states allow you to transfer assets by affidavit rather than via the probate process, if the sold heir at all and will beneficiary are the same and there are no unpaid creditors with a claim against those funds. New Jersey has two sets of small estate procedures for estates under $50,000. The cutoff is sometimes $10,000, sometimes $20,000, and sometimes $50,000 depending upon the circumstances and the nature of the simplified process sought. It isn't clear to me that they apply in cases where the decedent has a will and therefore is not intestate. Small Estates General Summary: Small Estate laws were enacted in order to enable heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estates can be administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available. Small Estate procedures may generally be used regardless of whether there was a Will. In general, the two forms of small estate procedures are recognized: Small Estate Affidavit -Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the affidavit to the holder of property such as a bank to obtain property of the deceased. Other states require that the affidavit be filed with the Court. The main requirement before you may use an affidavit is that the value of the personal and/or real property of the estate not exceed a certain value. Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary Administration, basing the requirement of which one to use on the value of the estate. Example: If the estate value is 10,000 or less an affidavit is allowed but if the value is between 10,000 to 20,000 a summary administration is allowed. New Jersey Summary: Under New Jersey statute, where as estate is valued at less than $50,000, a surviving spouse, partner in a civil union, or domestic partner, may present an affidavit of a small estate before the Superior Court. Upon the execution and filing of the affidavit, the surviving spouse shall have all of the rights, powers and duties of an administrator duly appointed for the estate. New Jersey: New Jersey requirements are set forth in the statutes below. TITLE 3B ADMINISTRATION OF ESTATES–DECEDENTS AND OTHERS 3B:10-3. When spouse, partner in a civil union, or domestic partner entitled to assets without administration. Where the total value of the real and personal assets of the estate of an intestate will not exceed $50,000, the surviving spouse, partner in a civil union, or domestic partner upon the execution of an affidavit before the Surrogate of the county where the intestate resided at his death, or, if then nonresident in this State, where any of the assets are located, or before the Superior Court, shall be entitled absolutely to all the real and personal assets without administration, and the assets of the estate up to $10,000 shall be free from all debts of the intestate. Upon the execution and filing of the affidavit as provided in this section, the surviving spouse, partner in a civil union, or domestic partner shall have all of the rights, powers and duties of an administrator duly appointed for the estate. The surviving spouse, partner in a civil union, or domestic partner may be sued and required to account as if he had been appointed administrator by the Surrogate or the Superior Court. The affidavit shall state that the affiant is the surviving spouse, partner in a civil union, or domestic partner of the intestate and that the value of the intestate’s real and personal assets will not exceed $50,000, and shall set forth the residence of the intestate at his death, and specifically the nature, location and value of the intestate’s real and personal assets. The affidavit shall be filed and recorded in the office of such Surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the Surrogate may authorize in writing that the affidavit be executed in the affiant’s domicile before any of the officers authorized by R.S.46:14-6.1 to take acknowledgments or proofs. amended 1983, c.246, s.1; 2004, c.132, s.77; 2005, c.331, s.24; 2015, c.232, s.1. 3B:10-4. When heirs entitled to assets without administration Where the total value of the real and personal assets of the estate of an intestate will not exceed $20,000 and the intestate leaves no surviving spouse, partner in a civil union, or domestic partner, and one of his heirs shall have obtained the consent in writing of the remaining heirs, if any, and shall have executed before the Surrogate of the county where the intestate resided at his death, or, if then nonresident in this State, where any of the intestate’s assets are located, or before the Superior Court, the affidavit herein provided for, shall be entitled to receive the assets of the intestate of the benefit of all the heirs and creditors without administration or entering into a bond. Upon executing the affidavit, and upon filing it and the consent, he shall have all the rights, powers and duties of an administrator duly appointed for the estate and may be sued and required to account as if he had been appointed administrator by the Surrogate or the Superior Court. The affidavit shall set forth the residence of the intestate at his death, the names, residences and relationships of all of the heirs and specifically the nature, location and value of the real and personal assets and also a statement that the value of the intestate’s real and personal assets will not exceed $20,000. The consent and the affidavit shall be filed and recorded, in the office of the Surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the Surrogate may authorize in writing that the affidavit be executed in the affiant’s domicile before any of the officers authorized by R.S.46:14-6.1 to take acknowledgments or proofs. amended 1983, c.246, s.2; 2004, c.132, s.78; 2005, c.331, s.25; 2015, c.232, s.2. The consent and the affidavit shall be filed and recorded, in the office of the surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the surrogate may authorize in writing that the affidavit be executed in the affiant’s domicile before any of the officers authorized by R.S. 46:14-7 and R.S. 46:14-8 to take acknowledgments or proofs.
(I am not your lawyer. I am not here to help you. If you are reading this because someone has died, please stop and instead read the Scottish Courts and Tribunals guide to dealing with a deceased's estate in Scotland, or contact a solicitor.) Yes, in general. Section 1 of the Wills Act 1963, which is in force in Scotland, specifies that "[a] will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed." Furthermore, Section 4 states that "[t]he construction of a will shall not be altered by reason of any change in the testator’s domicile after the execution of the will." "Construction" here refers to interpreting the language and effect of the will. So if the will was validly executed in England, it should also be in force in Scotland, and a Scottish court will give it the same meaning it would have had under English law. Furthermore, the same rule of validity seems to apply in both England and Scotland: Wills Act 1837 section 9. There may be other Scottish laws affecting the disposition of the estate that differ from English law. Relevant statutes include Succession (Scotland) Act 1964, section 21A, which seems consistent with Wills Act 1963. (I am trained in U.S. rather than English or Scottish law; I'm trusting the accuracy of the UK's excellent online legislation archive for the proposition that the statutes cited are in force in Scotland. I haven't checked the case law for contrary interpretations.)
If three people inherited a house in equal shares, then a new deed should have been prepared and filed with the appropriate governmental authority (the county in most US states) before probate is closed. When that is done the authority of the executors over the house as executors has ended. However, if I understand you correctly, the two former executors are also two of the three heirs to the house. Thus they own a 2/3rds interest in the house. At least they can sell their interests without your consent, leaving you a minority owner with the purchaser owner a majority. In some jurisdictions they may be able to force a sale, paying you your share of the purchase price. But this would be because of their majority ownership, not because of their former status as executors. Addition: In some states co-owners who are joint tenants may not sell their interests without the consent of the other co-owners, but this is jnot true in North Carolina According to the site of the Hutchens Law office: ownership as tenants in common provides each party with the right to sell, gift, devise, or otherwise convey their interest in the property without the permission of the other owners. This means that the ownership interest is freely alienable or transferable. As a result, an owner may sell or give their interest in the property to anyone they want, or they may willingly or by judgment use their interest in the property to secure or satisfy a debt with a creditor. Therefore, parties entering into an agreement to purchase property as tenants in common should be aware that they may ultimately end up owning the property with a stranger. If this were to happen, there is a way out, but it may be costly. At any time, if the parties can't agree, any owner may petition the court for a partition of the property. The court could require one owner to buy another out or force the sale of the property. The court will decide the ultimate outcome based on equity. ... [I]f the intent of co-owners holding interest as joint tenants is to automatically transfer their interest at death to the survivor, the language must be on the conveying instrument as right of survivorship is not automatic with joint tenancy in North Carolina and if the language in not included, the decedent's interest will pass to his heirs. ... However, any owner has the right to convey their ownership interest during their life; and if they do, the survivorship agreement ends, and owners simply become joint tenants by operation of law. In North Carolina there seems to be little practical difference between co-owners who are tenants in common, and those who are joint tenants without a right of survivorship. But whichever form of co-ownership is chosen: tenants in common, joint tenants without a right of survivorship, or joint tenants with a right of survivorship, each of the co-owners has a right during his or her lifetime to sell, give away, or use as collateral on a loan his or her share of the property, without consulting the other co-owners. They cannot force the other co-owner(s) to sell, except by starting an action of partition in a court, when a judge would decide. An unrelated buyer might be unwilling to purchase only a 1/3 or 2/3rds interest, because the remaining co-owner(s) would still have full rights to use and occupy the house, can could sell to a different buyer. All co-owners are responsible for their proportionate shares of all expenses, including mortgage payments, repairs, and taxes.
If I understand your question correctly, you have some clients who have paid you for services that you have not yet provided and, indeed, they have not yet requested. Is this correct? The accounting term for this is a "prepayment". The correct accounting treatment is to increase an asset account (your bank account) and create a liability account (Prepayments or something similar). You need to talk to your accountant about how to treat these for consumption and income taxes. Legally, these people are now creditors of your business - just like all of your suppliers and employees. There is no legal requirement to escrow or otherwise treat this as trust money. Basically, if your business goes bust they will lose their money. This is something that you should have dealt with in your contract with your customers - if you are running an online business then you should get a lawyer to revise your terms of service to cover things like how they can ask for a refund (and how long you have to get it to them) and how long (or if) they forfeit the funds. As it stands the money effectively becomes yours after whatever time under a statute of limitation applies to transactions of this type and size (under whatever law applies to the contract) since after that time they cannot sue to get it back.
However, he wants a new security deposit and a month's rent for the time we will use it in March, claiming that the sale process makes us new tenants. What are the legal rights and legal obligations of an estate in a month-to-month rental situation? The estate is just starting the probate process, and I am unclear on whether the landlord is a "traditional" creditor or in a unique situation since the money he is owed for rent continues to accrue after death. The decedent's security deposit, less valid deductions, is property of the estate, so if the landlord takes a second security deposit he is double dipping. Generally speaking, after someone dies, money judgments that have not been reduced to judgment liens, and unsecured debts (i.e. debts not supported by collateral) only have a right to be paid via submission of a claim to the probate estate in the probate process with claims made paid according to a priority schedule set forth in the probate code. But, generally speaking, death does not impair the property rights of third parties, so the fact that a debtor's estate is in probate is usually not a basis upon which a foreclosure or repossession of collateral for a default on a secured debt, or an eviction due to the termination of a lease, may be postponed while the probate case runs its course. Probate does not have the equivalent of the "automatic stay" in bankruptcy that prevents any creditors, secured or unsecured, from engaging in any collection activity against an estate, and probate estates are not allowed to file for bankruptcy either. If you really wanted to play hardball and only needed the apartment for a few days in March, the estate could simply continue to occupy it for that period of time and they pay the landlord the extra month's rent but not the additional security deposit when it was done. The landlord can't begin a foreclosure proceeding until there is a default which can't happen sooner than the last day of February. Even if the landlord is really on his toes, the landlord will be hard pressed to get a notice to vacate served on the estate and then to prepare and serve an eviction lawsuit on the estate and get that case in front of a judge before the estate will be ready to move out anyway. The estate might incur some attorneys' fees in the process if it did that, but the attorneys' fees would be an unsecured claim of the landlord that would have to be collected through the claims process in the probate proceeding which is usually a fairly favorable forum for the estate, instead of the usual court where small landlord-tenant disputes are handled. The probate estate could simply deny his claim for attorneys' fees and then, if the landlord wanted them after making a claim, the landlord would have to bring a lawsuit on fairly tight deadlines in the probate court to have the disallowance of the claim overturned. If you wanted to be even more aggressive, rather than paying the last month's rent, the estate could just holdover into March without paying rent or a new security deposit (vacating before the eviction process can run its course), effectively forcing the landlord to use the security deposit for March rent, and then forcing the landlord to use the probate claims process for both damages to the property claimed and for an attorneys' fees. If the estate is insolvent, or if the claim wasn't filed by the landlord (who may not even know that it is necessary to file a claim in probate) within the short deadline for probate claims arising after death, those expenses just wouldn't get paid at all.
Choice of Law The place where you get married is irrelevant to the question of whether or not you need a pre-nuptial agreement. What matters is where you intend to live once you get married. A pre-nuptial agreement exists to change the default rules of law upon death and divorce. These rules differ from state to state, so the default rules you might modify depend upon where you intend to live after you get married, and so does the extent to which you need to modify those rules. Generally, a divorce will be governed by the law of the place where the couple resides when the divorce is commenced, and generally inheritance is governed by the laws of the place where the decedent (i.e. the dead person) was domiciled (which means something close to, but not the same as where the decedent resided) at death. Why Get A Pre-Nuptial Agreement? If you and your bride are happy with the default rules of law regarding divorce and inheritance in the place that you intend to live, there is no need for a pre-nuptial agreement. If the two of you are not content with the default rules of law regarding divorce and inheritance in the place that you intend to live, then a pre-nuptial agreement can change some, but not all, of those rules. Generally, a pre-nuptial agreement can change rules regarding property division, alimony and attorneys' fees, but not matters related to children or related to the grounds upon which you can get divorced or related to whether fault can be considered in a property division or alimony determination. What the pre-nuptial agreement would say would depend upon your objectives for entering into it. To answer your question it is necessary to know &quot;what harm are you afraid of that a pre-nuptial agreement could prevent?&quot; This has more to do with your expectations and values than it does with the law. Some reasons that people enter into pre-nuptial agreements include: preventing a spouse from inheriting or receiving in a divorce wealth that you inherited or might inherit in the future, because the donors might decide not to leave you inheritances otherwise; preserving wealth acquired by the spouse's respectively during life for one's adult children in a late in life marriage (e.g. during retirement) that is unlikely to produce more children. The Formalities Any pre-nuptial agreement should be drafted with both spouses represented by lawyers, and any competent lawyer should know the details of executing the document that are necessary to make it valid. If the agreement is drafted in English, which would make sense if she was moving to the U.S. to join you, she would need to have an interpreter in addition to a lawyer to help her evaluate and negotiate it, unless she was already fully fluent in English enough to understand advanced legal concepts (which would be very uncommon unless, for example, she went to school for many years in the U.S.). Immigration Considerations In the immigration process, U.S. immigration officials are skeptical that international marriages are legitimate and have the power to determine that an international marriage was a sham. One factor among many that immigration officials use to determine that a marriage was a sham entered into for immigration purposes is the existence of a pre-nuptial agreement that favors the citizen spouse. The more strongly the agreement favors the citizen spouse relative to the default rules of law, the more likely it is that immigration officials will determine that the marriage is a sham. It is not necessarily a factor that will cause the marriage to be found to be a sham, in and of itself, but it is an important factor that would be considered. If you enter into a pre-nuptial agreement, you are making it harder for your bride to become a U.S. citizen, and the more it favors you, the harder it will be for her to become a U.S. citizen.
This will depend on the exact wording of the will. If the will is well-drawn, it will provide alternative recipients in case the primary recipient of a bequest dies before the testator (will-maker) does. But as a general rule, if A makes a will leaving particular property to B, but B dies before A does, that bequest is void. If the will specifies an alternate recipient, the property goes to the alternate. If not, or if all specified alternates die before the testator does, the property becomes part of the residual estate of the testator. (The residual estate is that part which is not subject to a specific bequest.) The testator can specify a line of descent for a bequest: "I leave my house to Joan and her heirs". In that case, if Joan died before the testator, the house would go to whatever person or persons inherit from Joan. This was once a somewhat common form of bequest, but now is much less common. A will normally includes language leaving the residual estate to some person (or several people) or some entity (it can be an organization, such as a church or a charity). This is often done with language such as "I leave all the rest of my estate to ..." OR "Everything not include above i leave to..." or "I give all the remainder and residue of my estate to...". The executor does not choose, but rather follows the directions of the will on who gets the residue of the estate. I am not sure what happens if the will does not name a residuary legatee, or if the person so named dies before the testator. That will depend on the specific law of the jurisdiction. In the US, this means state law, and will vary from state to state. The comment by Dale M says that assets not provided for in the will are inherited as if the person was intestate, that is, as if the person had no valid will. The law in each jurisdiction specifies exactly what rules are followed in the case of intestacy. In general this is that property goes first to the teatator's spouse and children, but if there are no living spouse and children, to more distant relatives. Eventually, if no relatives close enough can be found, property escheats, that is, goes to the government. The exact rule varies by jurisdiction -- in the US by state.
There is, in general, a rule that all matters connected with a single transaction or event should be included in a single legal case. Different jurisdictions apply this diffidently, and I haven't yet researched this in Maryland specifically. Also, if you agree to pay a part of what the landlord claims, you will quite likely be asked to sign a settlement agreement as part of the transaction. This is likely to include a release of all claims connected with your tenancy at the apartment. If it does, and you sign the agreement, you will be giving up any claim you might otherwise have because of the failure to properly notify you. You may want to consult a lawyer about this. A one-time consultation might not be very expensive. If you sued the landlord, you could do so in small claims court, where legal costs are significantly lower than in other courts.