Category Archives: Estate Planning Issues

Photocopy of Last Will and Testament

Last Will and Testament

What happens if I can’t find my dad’s original last will and testament?  Can I use a photocopy of his last will and testament?

There are problems in using a copy of a last will and testament.  Prior to about ten years ago, the answer was you could not submit a photocopy of one’s last will and testament.  But, tht changed in 2009.   Maryland Code Ann. Est. & Trust Sec. 5-802 allows one to submit a photocopy of the decedent’s last will and testament under certain circumstances.

What are the circumstances to submit a photocopy of the last will and testament?

The decedent heirs and legatees must provide their written consent that they accept the photocopy to be admitted to probate in lieu of the original.  It is important to note that “heirs” and “legatees” may be different people.  Heirs are individuals that would inherit if there was no last will and testament.  Legatees, on the other hand, are those individuals that are specifically named as beneficiaries in the last will and testament.

Here is an example of the problem in getting all to consent

Assume that dad’s original last will and testament could not be found.  In the photocopy of this last will and testament, he leaves everything to his two daughters who care for him in the last five years of his life.  His son, however, was left out of the last will and testament.  In this example, assuming mom has passed, the two daughters and son are the intestate “heirs” while the two daughters are the named beneficaireis – i.e. legatees. If the two daughters want to submit the photocopy of the last will and testament, they will need to obtain the signature of their brother.  But, of course in this example, thier brother may not want to sign the consent because if he does, he inherits nothing in the new last will and testamant.

 

Another Win! – Will Contest

We had another will contest win.  Our client was gracious enough to send us a card expressing her thanks.  This is what she had to say:

“Thank all of you for the way you handled our case.  You guys are wonderful.  Along with being very professional, you showed us such compassion.  You guys went over and beyond to make sure the wrong to us was made right.  We cannot thank you enough.  We will highly recommend you.  Thank God for all of you.  Sincerely, B.J.

P.S.  Wow!!! What a check (smile).”

Inherited IRA and 401(k)s

Does a Surviving Spouse have a Right to the Deceased Spouse’s 401(k) or IRA?

When choosing a beneficiary for a retirement plan, it is important to understand how your spouse will be treated under the plan. Surviving spouses are treated differently under 401(k)s and individual retirement accounts (IRAs). While a 401(k) provides protections for a surviving spouse, an IRA does not.

Because the 401(k) is an employee-based retirement system, it is governed by a federal law, the Employee Retirement Income Security Act of 1974 (ERISA). Under ERISA, a surviving spouse is usually the automatic beneficiary of a retirement plan (There may be some exceptions. For example, the spouse may have to be married to the employee for a certain amount of time). The spouse must consent in writing if the employee wishes to name someone else as the beneficiary.

IRAs, on the other hand, are not governed by ERISA, so they do not include the same protections for spouses. This is true even if a 401(k) is rolled into an IRA. In a recent case, Charles Schwab v. Debickero (U.S. Ct. App., 9th Cir., No. 07-15261, Jan. 22, 2010) a husband rolled his 401(k) into an IRA with Charles Schwab & Company after he retired. He named his children as the IRA’s beneficiaries. After he died, his wife claimed that she was entitled to the account funds as his surviving spouse. She argued that because her husband rolled his 401(k) into the IRA, she should receive the same protections that the 401(k) gave her. The court disagreed, finding that the IRAs are excluded from ERISA coverage even if the funds originated in a 401(k).

If you have an IRA and want your spouse to be its beneficiary, you have to specifically name the spouse as a beneficiary. If you have a 401(k) and want your spouse to be the beneficiary, you should still fill out a beneficiary designation form, naming your spouse. And if you roll it over into an IRA, make sure you fill out a new beneficiary designation form. If you want someone other than your spouse to be the 401(k)’s beneficiary, you will need the spouse’s consent in writing, as noted above.

Whether you have a 401(k) or an IRA, it is important to regularly check your beneficiary designations to ensure they are current.

from www.elderlawanswer.com