Execution of Wills

[GVF]

Ok local TN lawyers...Both parents now deceased. TN law is pretty clear that assets like bank accounts, etc., go direct to beneficiary in will. However, the farm has acreage and three houses. With 3 siblings. The division has been made in the will as to who gets which of each of the 3 properties. all are agreed on the division. It's what parents wished and they wrote in will as such. Does this still have to go through probate to for each person to get the deed to their portion??? The property has already been preciously surveyed, and deeds already separated as to how they will be divided/awarded.

 

[Guest]

Title lead me to believe Wills was kilt. Carry on

 

[volwindy]

I'm not an attorney, but work in legal and review POAs/Wills in order to allow people to be added to a mortgage account.

In regards to doing real estate transactions there is a lot more handling by the state courts, so I would imagine a probate would have to be done in order for a judge to validate the will before the real estate transfer of title can take place - especially considering how much property is involved.

I'm not sure on specifics in TN, but I'd call the probate court and explain the situation. Most clerks are very helpful if you are kind in your interaction.

 

[volwindy]

@GVF

 

[VolunteerHillbilly]

so the property is already legally subdivided with three different recorded deeds, and the will specifies exactly who gets each deed, and nobody is going to bitch about what they did or did not get?

 

[pismonque]

Title lead me to believe Wills was kilt. Carry on

You were worried that someone would... Bump Wills?

 

[GVF]

@volwindy @VolunteerHillbilly


Here's how the land is:

My great aunt left my father her 66 acres with a house. Mom and dad built a retirement home behind the old house. So, that parcel has two houses. It will divided by house and land per equal value between my brother and sister. There are separate mail box numbers, and there is a mortgage on one house, but I noticed on the assessor's map, the acreage and address is still one for tax purposes.

My place (my dad's old house) was between him and his brother. When his brother died, dad surveyed out half the acreage to his kids, and my portion has the house and remaining acreage. Both listed independently in the assessors office.

Let's assume for now, everyone is in agreement. we are all getting the houses we wanted. two of us have been living in them. I did some more homework on tax maps and such. my house I think has been filed and subdivided on the deed, because dad had to give his brothers kids a portion of his fathers land. But, it is still in dads name.

Here's where I now have questions:
1. there is a good chunk of money in accounts to pay off the mortgage on the parents house going to my sister. By law does this have to be done. he made the comment to me there was nothing in the will that says we have to, like he wanted to keep his money (he's the executor). I think it has to be paid off legally, and should be because it's right, the other two houses have no liens, and it's how mom and dad raised us. Where it gets sketchy for me is if the mortgage is only on one of the two houses on that property, but it doesn't appear it has been divided as far as the assessors office, what does all that mean. ?? I'd like some money, but I still inherit a debt free place, so it's not a bad day.

2. there was no living trust, just a will, so I think I did find where in TN everything except the property can be divided now, and the land and houses go through probate anyway, or it's near impossible to transfer deed.

3. The above is what makes it tough for my sister. Probate is time and money, and if uncontested may not be too bad. But, it could still be months, and there will be mortgage payments on this house plus theirs and that puts a strain on them. Or the cash could be kept back to make house payments till probate is settled then pay mortgage off. Which means we have to watch my brother. He fell a little further from the tree and is acting a little sketchy. can't tell me and her the same things.....

4. As of now, no deed is in our names. Dad was a procrastinator and didn't do his homework and left everything in a will instead of a trust where you can skip probate.

 

[CagleMtnVol]

Title lead me to believe Wills was kilt. Carry on

I read this...

 

[tbones0711]

Title lead me to believe Wills was kilt. Carry on

Thought something similiar.....like Wills was on death row, LOL !

 

[VolunteerHillbilly]

I just finished my 3rd and final beer for the night. I'll think about this and follow up a post in the next few days.

 

[vollygirl]

I read this...

View attachment 282051

Ditto

 

[Thunder Good-Oil]

Note to anybody with accounts at financial institutions. Set up the Transfer on Death beneficiaries so that the financial assets are easily and quickly disposed of from the estate. Even with a will, the TOD designees as filed with the bank/broker (and beneficiaries named in insurance products) should take precedence. Much cleaner and cheaper by keeping those assets away from the courts and lawyers.

 

[Plano Vol]

I was the single heir on Tennessee property and took it through probate to insure clear title. I don't remember probate costing too much..

 

[YankeeVol]

Well glad no one was executed

 

[Thunder Good-Oil]

I was the single heir on Tennessee property and took it through probate to insure clear title. I don't remember probate costing too much..

I'm not certain, but if everything has been well planned with a clear will then the probate process s/b a simple routine. When there's not a will and/or there are disputes among heirs then it can get messy and expensive. Using TODs on accounts and designated beneficiaries should keep those assets outside of the probate process. Real estate would no doubt complicate things a bit, but nothing too bad if the planning was solid.

I would think that with RE mortgages, unless there is something written into the will about using other liquid assets to pay off the loan balance that the mortgage stays attached to the real estate asset. I would think that it's the equity that goes to each designated beneficiary rather than the asset free of any mortgages. I'm interested to see what gets posted by somebody that has relevant experience with passing mortgaged RE to heirs through a will.

I bet that a basic will through a competent attorney probably runs somewhere around a grand to $1,500 these days. Maybe a bit more including getting everything in order with the court after the party has passed.

I've had very little experience with these matters. I hope that some legal professionals will chime in.

 

[Thunder Good-Oil]

I'd be interested in what the routine is in TN when somebody passes with no will. Especially what percentages would go to children, parents, spouses, aunts, uncles, cousins, cousins once removed, etc. Just guessing the estate first goes 100% to a spouse, if none then 100% to children (with provisions if they are minors or not capable of managing their affairs), if none then 100% to parents (maybe those that were the last legal guardian(s) of the deceased), then (if none) to siblings, and if no spouse, parent, child, sibling, aunts/uncles then how the estate is divided among cousins and does the estate default to the state at some point. If the only heirs are cousins, are all first cousins equal or is the estate distributed 50% to the lineage of each parent? If 8 cousins are on one side and 2 on the other would each get 10% or is it 25% each for the 2 and 6.25% for each of the 8? So many questions. Need to just have a will to prevent unnecessary family disputes. Even if it's a do-it-yourself online cheap one, it's far better than nothing.

 

[volwindy]

I'm not certain, but if everything has been well planned with a clear will then the probate process s/b a simple routine. When there's not a will and/or there are disputes among heirs then it can get messy and expensive. Using TODs on accounts and designated beneficiaries should keep those assets outside of the probate process. Real estate would no doubt complicate things a bit, but nothing too bad if the planning was solid.

I would think that with RE mortgages, unless there is something written into the will about using other liquid assets to pay off the loan balance that the mortgage stays attached to the real estate asset. I would think that it's the equity that goes to each designated beneficiary rather than the asset free of any mortgages. I'm interested to see what gets posted by somebody that has relevant experience with passing mortgaged RE to heirs through a will.

I bet that a basic will through a competent attorney probably runs somewhere around a grand to $1,500 these days. Maybe a bit more including getting everything in order with the court after the party has passed.

I've had very little experience with these matters. I hope that some legal professionals will chime in.

The banks don't care about the equity. They are concerned about the debt being paid off. If there is a will designating who gets the property, then that person can be named a successor in interest to the account to continue to pay the mortgage until the courts finalize the transfer of the deed and then the mortgage can be refinanced in their name. If nothing is done, then the bank will just foreclose. Unfortunately that's what a lot of children let happen because they don't have the money to pay for another mortgage.

 

[volwindy]

I'd be interested in what the routine is in TN when somebody passes with no will. Especially what percentages would go to children, parents, spouses, aunts, uncles, cousins, cousins once removed, etc. Just guessing the estate first goes 100% to a spouse, if none then 100% to children (with provisions if they are minors or not capable of managing their affairs), if none then 100% to parents (maybe those that were the last legal guardian(s) of the deceased), then (if none) to siblings, and if no spouse, parent, child, sibling, aunts/uncles then how the estate is divided among cousins and does the estate default to the state at some point. If the only heirs are cousins, are all first cousins equal or is the estate distributed 50% to the lineage of each parent? If 8 cousins are on one side and 2 on the other would each get 10% or is it 25% each for the 2 and 6.25% for each of the 8? So many questions. Need to just have a will to prevent unnecessary family disputes. Even if it's a do-it-yourself online cheap one, it's far better than nothing.

If there is no will, someone can apply to be a power of attorney with the court. It's a really a pain for that person because they have to figure out all assets and all potential heirs who have to be listed that a probate is being opened. Then those heirs have to respond back to the court saying yes I'm a heir and interested in the assets or no, I don't care, divide it among the other heirs. Then the court will decide how things are divided out.

Sometimes as banks we have to be a PITA, because the POA will come to us an say hey, this person died, I was named POA by the court, and no heirs wanted to make claim to this property this dead person owned and now the POA wants it. Well you didn't list this property as an asset so you need to go reopen the court case and essentially redo everything.

 

[Thunder Good-Oil]

The banks don't care about the equity. They are concerned about the debt being paid off. If there is a will designating who gets the property, then that person can be named a successor in interest to the account to continue to pay the mortgage until the courts finalize the transfer of the deed and then the mortgage can be refinanced in their name. If nothing is done, then the bank will just foreclose. Unfortunately that's what a lot of children let happen because they don't have the money to pay for another mortgage.

Thanks. That's kind of what I meant. If an estate has just 2 assets, say a $100k home and a $100k bank account and the home has a $30k mortgage, if one heir is willed the house and a different heir is willed the cash, then the heir given the house is receiving $70k equity and the other gets $100k cash. The mortgage won't be paid off with the cash in the bank account unless the will explicitly states that it should be. Obviously if mortgage payments are missed then the bank will foreclose. Also, (I assume) until everything is settled then the $100k in the bank would continue to be used by the executor to make mortgage payments... so the heir getting the bank account receives less than $100k as payments are made.

That raises another question. If the bank account is set up with a TOD designation, does it transfer IMMEDIATELY upon the account owner's death and if so how are is the obligation for the mortgage payments handled? I guess it gets messy if there isn't unemcumbered cash available in the estate to meet the various ongoing obligations (including paying the attorney's and executor's fees while sorting out the potential mess).

Another question, more of a mortgage question, if an estate has a $100k bank account with a TOD beneficiary designated AND a $100k home that is upside down with a $125k mortgage, does the lender typically have a claim on the bank account or is the home itself the only asset that the lender can go after to pay off the mortgage?

I guess I could google the details of a TOD designation and find a lot of answers.

 

[Thunder Good-Oil]

If there is no will, someone can apply to be a power of attorney with the court. It's a really a pain for that person because they have to figure out all assets and all potential heirs who have to be listed that a probate is being opened. Then those heirs have to respond back to the court saying yes I'm a heir and interested in the assets or no, I don't care, divide it among the other heirs. Then the court will decide how things are divided out.

Sometimes as banks we have to be a PITA, because the POA will come to us an say hey, this person died, I was named POA by the court, and no heirs wanted to make claim to this property this dead person owned and now the POA wants it. Well you didn't list this property as an asset so you need to go reopen the court case and essentially redo everything.

Thanks. I was more interested in the distribution percentages when there's no will but all relatives are known. I didn't even think about somebody being pro-active to take control of the estate. I guess that's just another potential situation of disputes if multiple individuals desire to handle the affairs and petition the court to be the executor. I would hope that probate courts typically move very quickly to get somebody in place to manage affairs. I guess if there's pending litigation over who should be designated as the executor or has immediate POA authority, the court can assign an uninterested third party as at least an interim estate manager.

I never really thought about all of the details of estate settlement and it really brings to light the necessity of having wills prepared. Seems pretty lucrative to be an estate attorney as well. They're either going to get paid by creating a will on the front end or they'll get paid working on cleaning up the mess on the back end when there isn't a will.

 

[volwindy]

Thanks. I was more interested in the distribution percentages when there's no will but all relatives are known. I didn't even think about somebody being pro-active to take control of the estate. I guess that's just another potential situation of disputes if multiple individuals desire to handle the affairs and petition the court to be the executor. I would hope that probate courts typically move very quickly to get somebody in place to manage affairs. I guess if there's pending litigation over who should be designated as the executor or has immediate POA authority, the court can assign an uninterested third party as at least an interim estate manager.

I never really thought about all of the details of estate settlement and it really brings to light the necessity of having wills prepared. Seems pretty lucrative to be an estate attorney as well. They're either going to get paid by creating a will on the front end or they'll get paid working on cleaning up the mess on the back end when there isn't a will.

That's the thing though, it's not up the courts to do anything until an estate or claim is filed. It is then up to the judge based off of the information provided by the POA to properly disburse the assets. So if there is not a will, it is up to the potential heirs to make the move. Otherwise that is when accounts get turned over to the state, banks will foreclose on houses, etc.

So yes, it makes it easier on everyone to make sure a will is completed. And PROPERLY completed. Many times we have to deny a will because it didn't have the appropriate signatures or didn't have a notarization. States all have different requirements.

 

[volwindy]

Thanks. That's kind of what I meant. If an estate has just 2 assets, say a $100k home and a $100k bank account and the home has a $30k mortgage, if one heir is willed the house and a different heir is willed the cash, then the heir given the house is receiving $70k equity and the other gets $100k cash. The mortgage won't be paid off with the cash in the bank account unless the will explicitly states that it should be. Obviously if mortgage payments are missed then the bank will foreclose. Also, (I assume) until everything is settled then the $100k in the bank would continue to be used by the executor to make mortgage payments... so the heir getting the bank account receives less than $100k as payments are made.

That raises another question. If the bank account is set up with a TOD designation, does it transfer IMMEDIATELY upon the account owner's death and if so how are is the obligation for the mortgage payments handled? I guess it gets messy if there isn't unemcumbered cash available in the estate to meet the various ongoing obligations (including paying the attorney's and executor's fees while sorting out the potential mess).

Another question, more of a mortgage question, if an estate has a $100k bank account with a TOD beneficiary designated AND a $100k home that is upside down with a $125k mortgage, does the lender typically have a claim on the bank account or is the home itself the only asset that the lender can go after to pay off the mortgage?

I guess I could google the details of a TOD designation and find a lot of answers.

Bank accounts and mortgage accounts are completely separate. A bank handling a mortgage account can't go after a bank checking account.

So let's say John owned the home and died. The bank is still going after John's house regardless of death. If child Jason is awarded to the house in the will, it is up to Jason to likely open the probate with the court to confirm the will is valid, transfer the title and refinance the loan. Jason in the meantime of handling this, can contact the mortgage company and say they are a successor in interest with proof of the will which gives him the ability to have access to that mortgage account. If Jason doesn't care about the house or the house is upside down, he can just not open the probate and wait for the bank to foreclose.

 

[Thunder Good-Oil]

So in the case of a tiny estate with no real estate and little cash involved, the assets probably just naturally slip away to whomever has access to the various low value knick knacks. If anybody disagrees with whomever grabs stuff before them, it's either settled in the Waffle House parking lot or they have to hire an attorney and fight. Which without assets of much value probably never happens?

 

[volwindy]

So in the case of a tiny estate with no real estate and little cash involved, the assets probably just naturally slip away to whomever has access to the various low value knick knacks. If anybody disagrees with whomever grabs stuff before them, it's either settled in the Waffle House parking lot or they have to hire an attorney and fight. Which without assets of much value probably never happens?

Pretty much. Even with a Will, if the knick knacks are said to be divided equally among the heirs, one heir could end up getting to it before another heir and lie about what actually was there. So if you want no issue, the will has to talk about every knick knacks, but who actually does that?

My parents actually asked my siblings and I what are the couple items we really want, so they have put that in the will, beyond that it's going to be a fight

 

[Thunder Good-Oil]

Pretty much. Even with a Will, if the knick knacks are said to be divided equally among the heirs, one heir could end up getting to it before another heir and lie about what actually was there. So if you want no issue, the will has to talk about every knick knacks, but who actually does that?

My parents actually asked my siblings and I what are the couple items we really want, so they have put that in the will, beyond that it's going to be a fight

And as far as government involvement with a small estate it's probably just going to be a death certificate filed (and those might be electronically matched up with the Social Security Administration)?

I saw a TV program a couple of years ago where the state officials were handling estates of people that passed without wills or known relatives. They inventory and store all of the stuff, put out legal notifications, and if there's no response everything eventually goes to auction, cash is consolidated, bills are paid, and then whatever is left goes to the state/unclaimed property for a while.