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D. More about Wills and Probate

D. A few more facts about Wills and Probate

1. In many states, if a witness to a Will is also a beneficiary, and the Will cannot be proved without this witness, the Will can be void as to that beneficiary/witness. Avoid this situation.

2. The birth of a child, unborn when one’s Will is made, serves to revoke that Will, in many states. In others, an after-born child receives a share equal to what he/she would have received if the Testator had died without a Will (i.e., intestate) unless: It appears that the omission was intentional, OR the Testator already did have one or more children and left substantially all to the surviving parent of the omitted child, OR the Testator provided for the omitted child by gifts outside the Will. The share-splitting arithmetic in such situations can get complicated. This formula does not necessarily result in equal treatment of the omitted child, so it is wise to have your Will revised after the birth of a child.

3. In some states, a “no contest” clause can be used in a Will to automatically exclude anyone who challenges the Will in court. This can be a very useful tool if your state allows it. It is unlikely, however, that any state would enforce the exclusion of a beneficiary presenting a legitimate claim of outright fraud or other significant impropriety against the Executor.

4. Marriage generally revokes a person’s Will automatically, unless the Will expressly states that it is not to be revoked. A divorce and final property settlement bar all claims of the divorced survivor to the estate of the ex-spouse. The same may be true if a spouse abandons the household, even if there is no formal divorce.

5. Regarding access to safe deposit boxes and joint accounts after death: Unfortunately, not much general advice can be offered on this important concern. State laws vary, and experience shows that procedures differ among banks. (All banks have a person in charge of deceased customers’ accounts, and he/she should have the details you need.) The following observations may be helpful.

Many banks check death records daily, and you might have a legal duty to inform the bank of the death of a customer before attempting to access funds. If the bank is aware of the death, accounts and lock boxes will often be frozen, at least briefly. Under one sensible approach, a deceased customer’s safe deposit box can be opened, only so the Will can be retrieved, after the state taxing authority’s agent is notified to be there. The contents are not available till after probate.

The “joint” bank accounts most people speak of are owned “jointly with right of survivorship.” Therefore, they do not have to wait for distribution through probate court. Unfortunately, the account might still be frozen by the state to secure payment of state death (or other) taxes, if any. If the surviving joint tenant of an account is the spouse, the funds should be much easier to get, partly because few states impose death taxes on transfers to spouses. If the surviving tenant is not the spouse, a tax release might be necessary.

6. In some states it is possible for a surviving spouse to obtain emergency money from a bank account that has been temporarily frozen because of the decedent’s death. To avoid hardship, he/she might be able to get an immediate court order permitting the withdrawal of a small sum for living expenses (e.g., $1,000) until the local tax authorities release the account.

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