Frequently Asked Questions
Frequently Asked Questions
Question: Is there grief counseling?
Answer: Yes!! Your health care provider can recommend someone. Google is a wonderful source for providing resources as is your local Hospice.
Question: Is an obituary mandatory?
Answer: No it is not. If you do choose to have one, please refer to Section V, Section C, Paragraph 11.
Question: What is mortgage insurance and is it important or necessary?
Answer: Mortgage insurance is a form of term (meaning it lasts a specific length of time) life insurance. Mortgage insurance is just an expensive and limited form of life insurance, compared to regular life insurance, but the process of underwriting (based on the health and age of the applicant) is exactly the same. The differences are in how insurance benefits will be paid out, and most importantly, to whom the payment will be made. Mortgage insurance will pay the balance of the mortgage on a property ONLY to the holder of the mortgage, which sounds good until you realize that essentially you are paying for decreasing term insurance.
For example, let's say you take out mortgage insurance on a house with a mortgage of $350,000. That it what the mortgage company would receive to pay off the home at the outset. However, after several years, you have made payments on the home, and you now owe only $300,000 on it. That is now what the mortgage company would receive to pay off the house. The mortgage company is receiving less, however your premium payments are still exactly the same as when you owed $350,000 on the home. You would NOT receive the extra $50.000.
In the event the family wishes to move, or needs cash instead of trapped equity in a house, this will not help them. Finally, it is expensive relative to regular term insurance. Therefore, since the underwriting process is exactly the same, the cost is more expensive, and it has more limitations than advantages, we recommend the purchase of regular life insurance instead.
Question: What is Private Mortgage Insurance
Answer: Private Mortgage Insurance (PMI) is insurance that protects your lender against non-payment should you default on your loan. It is important to understand that the primary and only real purpose for mortgage insurance is to protect your lender, not you. As the buyer of this coverage, you are paying the premiums, so that your lender is protected. PMI is often required by lenders due to the higher level of default risk that is associated with low down payment loans. Consequently, its sole and only benefit to you is a lower down payment mortgage.
Question: Do I need to file anything with the (U.S.A.) Internal Revenue Service?
Answer: The IRS Form 712 (Life Insurance Statement), http://www.irs.gov/pub/irs-pdf/f712.pdf, is a form which the executor prepares and files with the Form 706, (United States Estate (and Generation-Skipping Transfer) Tax Return), http://www.irs.gov/pub/irs-pdf/f706.pdf . It makes sure the life insurance proceeds are not counted as income.
Question: What information will I need when I call the insurance company?
Answer: The name of insured, his / her date of death, the policy number(s) and social security number. The agent might call you for more information to process the forms for the claim.
Question: Would it be legally enforceable if we just wrote our own Will without an attorney?
Answer: The main requirement is that it be signed, witnessed and notarized. In most cases, that will suffice. However, what you may have put in the Will might conflict with what you have set up for beneficiaries of your assets, and in that case, the titling / named beneficiaries will trump whatever the Will says. It is best, then to have a professional at least review what you have written. In the case of other important documents like the Healthcare Power of Attorney and Durable Power of Attorney, you should definitely seek professional help to make sure what you intend is what happens.
Question: Doesn't everything just automatically transfer to the surviving spouse?
Answer: Not necessarily. If the spouse is not listed either as a co-owner (Joint Owners with Right of Survivorship), or a named beneficiary (like Transfer on Death in the case of a bank or stock account, or on an IRA or pension or life insurance policy) then the assets will have to probate before transfer.
Question: What if we live and work in different states? Which laws take precedence?
Answer: The state of legal residence of the deceased takes precedence, but unless you have a Trust, you will probate in each state in which the deceased or couple jointly owned property.
Question: When should I be canceling the social networking accounts like Facebook, Twitter, Email etc., and what information will I need to do this?
Answer: You can do this as soon as you are comfortable, but we suggest you do this between the two to six month period after a loved one’s passing.
For the ‘Social Networking’ accounts you will need the login user name, or login email address, and password for each account. If you do not have these, you will need to send copies of the death certificate and in some cases a copy of a published obituary.
Facebook suggests you convert the site to a memorial site. This allows existing family and friends to post remembrances on the site but blocks new users from joining. http://www.www.facebook.com/help/contact.php?show_form=deceased
Question: How important is it to have a durable power of attorney?
Answer: It is ESSENTIAL! This is the document that allows someone to take over management financially when another person is unable to act for themselves. All other types of power of attorneys expire once the person is incapacitated. It also allows those decisions to be processed outside of probate.
Question: Does all property have to go through the probate process?
Answer: Not necessarily. Some states have a certain amount of property, such as property with a named beneficiary or ½ of community property, etc. that can pass free of probate. They might require that everything else pass through probate. Some even have a simplified process for a “free” Will where the court has outlined exactly who gets what in the event of a death without a Will.
Question: In what state is the probate process initiated?
Answer: It is initiated in the state of the decedent’s legal residence at the time of death.
Question: Who is responsible for probating the Will?
Answer: The executor/executrix named in the Will.
Question: What if there is no Will?
Answer: If there is no Will, the person is deemed to have died intestate, “without a Will”. If this occurs, then the court is requested to be appointed as the administrator of the deceased’s Will, in order to perform the same function of the executor.
Question: Do I need a certified copy of the death certificate to start the probate process?
Answer: Yes. We recommend you order at least twenty-five copies of the death certificate, with raised seal. Don’t be surprised if, later on, you need to order more.
Question: How do I begin the probate process?
Answer: After receipt of the certified copy of the death certificate, the executor will initiate a Petition for Probating the Will and Appointment of Executor at the probate court clerk’s office in the state/country in which the person died. Note: Probate court is a division of the state court legal system and could be referred to by another name depending on where you live.
Question: Do I need a lawyer to begin this process?
Answer: A lawyer is not required to begin the process.
Question: What happens once I request the petition for probate?
Answer: There are several steps that occur:
1. A date will be set by the probate court for the executor or administrator to appear before a judge, present the Will and ask to be formally appointed.
2. The Will’s validity is established and the court issues an order, “admitting the Will to probate”, which is recorded in the county clerk’s records.
3. The Will becomes public record along with all subsequent filings with the court.
4. The probate judge will officially appoint the executor (or administrator) who will be given full authority to deal with the decedent’s probate property and accounts.
Question: Who should I select as an Executor?
Answer: This is a difficult question. Lawyers advise against naming spouses because the spouse is least able to deal with all the stresses and the administration of the estate. You should consider using an adult child, a good friend or a trusted CPA. Choose someone who will act in good faith, in a timely manner, and who is comfortable with forms, finding paperwork and handling various companies and courts.
Question: I have minor children. What are the advantages of having a Trust (versus just a Will)?
Answer: There are three reasons of which we can think to do this:
- The privatization and assurance that the person(s) you select as the guardian(s) for them will not be subjected to the opinion of the court, nor overruled by the court (as it can be with a Will). This is especially true for divorced couples, or couples with multiple sets of grandparents who might contest the naming of someone else as guardian. Since the Trust does not probate, the Court does not become involved.
- Minor children cannot inherit until they reach the age of 18. In the meantime, who will manage the funds for them? If no one is named, the court will appoint a guardian ad litem (at the expense of the estate / funds left to the children), and the state will manage the money in a financially conservative manner. This currently means in a simple bank account. If someone is named, that person may or may not be a good financial manager, and is not subject to any oversight. With a Trust, a Trust Company will manage the funds as a fiduciary (in the best interests of the children), allowing the funds to grow, and with oversight.
- With a simple Will, at age 18, the children inherit all with no oversight or limitations. With a Trust, the parents can stipulate the situations in which money is released, the amount, and the age or triggering event at which the money would be released.
Question: What is the best way to store our documents?
Answer: There are several recommended ways:
1. The key to storing these important documents is security. The more secure the storage area is, the better. Keep the originals in as secure a place as possible. Two examples would be a fire-proof safe or a safety deposit box in a bank. A fireproof safe in your home gives you immediate access to the documentation which makes it easier for you to review and, if necessary, update it.
2. You can never have enough electronic copies of the originals. Most printers these days have scanners built in to them. All of your original documents should be scanned, properly titled and stored on your computer hard drive, rewritable DVD’s, flash, or thumb, drives, a password-protected external hard drive, etc. These should also be stored with the original documentation and electronic copies of these should be stored in another secure location, if one is available. A nice feature of an external hard drive is that it will be large enough to which you can backup your entire hard drive. Many years from now when you might need this data, we hope, you will have access to the applications that you use today to open and display the documents you have stored.
Note that DVD’s which are “burned” rather that “cut” will degrade over time. We recommend you do not use DVD’s that you made yourself.
3. Secure on-line storage should also be considered. You should consider either a cloud service or an on-line backup service. There are many of these available.
4. Think security first, and as many backups with which you are comfortable second.
Question: How do I contact…?
Social Security 800-772-1213 http://www.ssa.gov
Veterans Affairs 800-827-1000 http://www.va.gov