What happens during a divorce when abuse is present? How do you safeguard yourself and those you love during those tough times? Divorce can be an incredibly difficult experience, and it gets even more complicated when abuse is involved. With the help of Susan and Tracy in this episode, you’ll learn how to safeguard yourself or your loved ones during these tough times. Knowing the signs of various forms of abuse could prove vital for protecting both yourself and those around you from further harm.
What Happens When You Die Without a Will?
Having a will prepared and in place is something that too many of us delay or put off completely, but a will is one of the most important things you need to do for your family. In this episode, we discuss what happens when you die without a will – the legal consequences and challenges families face without a will in place.
Susan Reff: On today’s podcast, we are going to discuss what happens if you die without a will. And today, Tosha Heavican is here with me.
Tosha Heavican: Good morning.
Susan Reff: Good morning, Tosha.
Tosha Heavican: It’s good. It’s bright. And early this morning I got up and went to the dentist before I came in, so my dentist does seven a.m. appointments, which I appreciate because I like to get it over with. But so my teeth are fresh and clean this morning.
Susan Reff: So was this a routine exam or something big?
Tosha Heavican: No routine exam. So you know, you got to get in there twice a year and get cleaned up and polished and all that. So. Did that this morning. So I
Susan Reff: Have to go to the dentist more than twice a year for cleanings
Tosha Heavican: Because you want to or because they make you
Susan Reff: A confession. I have really, excuse me, I have really bad teeth. Not for lack of trying. Like it’s like genetic. So I have I have gum disease, and so I have to go four times a year at a minimum just to get my teeth cleaned because apparently my mouth likes to harbor lots of bacteria in my gums. So I go four times a year for cleaning and then anything on top of that.
Tosha Heavican: Interesting. So in talking with my hygienist this morning, I learned two things. One is that so much of our teeth health is actually genetic. So when I was born as an infant, I had super high fevers. And because of that, I have no enamel on my teeth and so wine. So I have a lot of fillings just because at a very early age, my teeth were not protected and there wasn’t a whole lot they could do about it. And the second thing that I learned is that there are actually people that come into the dentist and say, you know, they always ask you, Do you floss? Do you brush? And people lie, except for apparently there are people that come in and say, Yeah, I don’t brush my teeth.
Susan Reff: Well, you know, if you’re going to go to a doctor, you should probably be honest with what you’re doing, right? That’s true.
Tosha Heavican: But then also like, how are you talking to people and like when you’re wearing your mask, do you not smell your breath and realize like, Oh my goodness, I’m I’m projecting that smell out into the world for people?
Susan Reff: Yeah. The breath, the bad breath problem is, how do they even have teeth left, right, right?
Tosha Heavican: And that’s the thing is, when we were talking about this whole genetics thing, she’s like, What’s interesting is there’s people that will come in here and say, I do not brush my teeth, and it’s very evident they don’t because I have to work very hard to get the plaque off. Yeah, she goes, and they’ve never had a cavity.
Susan Reff: So another confession my husband is not got the best routine like. He’ll forget to brush his teeth sometimes, or he’s like, I’m so tired. I’m just going straight to bed. And he doesn’t brush his teeth, you know, twice a day now, he brushes his teeth at least once a day. Sure. I think I’ve never seen him floss. He doesn’t routinely go to the dentist. I think he’s had one cavity in his whole life. He’s just genetically on the the plus side of the dental gods of getting good teeth. And he didn’t have to have braces
Tosha Heavican: That would have been if that was a lottery, I would have wanted to win that one. I think, yeah,
Susan Reff: I have a lot of fillings also. And so we’re already talking about like having crowns. Yes, I have a few crowns.
Tosha Heavican: Me too. I have temporary fillings that have been temporarily in there for 20 years,
Susan Reff: So I didn’t know that was the thing.
Tosha Heavican: Yeah, my dentist keeps telling me these were probably supposed to be temporary, and I’m like, Well, I don’t even remember when I got them. That’s how long ago they were put in there. So now we have to talk, have that conversation about getting crowns and, you know, because my teeth in the back, because they were ruined from my lack of enamel, right? So wow. So that’ll be fun. But it’s kind of exciting because then hopefully my smile will be better, right?
Susan Reff: Yeah, I just started with a new dentist. I fired my old dentist because he kept moving his office further and further away from where it was convenient for me to go. And now it’s almost out by where you live in Council Bluffs, OK? And so I’m like, I am not driving all the way out there to go to the dentist.
Tosha Heavican: So you might have done it. So I live, as you said in Council Bluffs, but my dentist is on like seventy eighth and dodge and all.
Susan Reff: We’re like crossing paths to go to the dentist we are.
Tosha Heavican: But I really like my dentist and he’s great with my kids. So like all four of us, go there and you know, my kids are really great about going to the dentist and they love it there and the people are great. Yeah, so and I actually had. You know, some pretty traumatic experiences as a kid with dentist, and so for as a young adult, I would avoid going to the dentist because I just had all these memories of how terrible it was. And so when I first found this dentist, I went in there and I said, Full disclosure, I’m your craziest patient, so just be ready. And so they have all kinds of notes in my file. I like the water pick. I only like certain hygienists, you know? Yes, but yes. But it’s worked out and it’s great. And you know, so we like it. So I’m loathe to change my dentist, so we do the drive.
Susan Reff: Well, it was hard and I I also switched to a woman because I prefer to work with women professionals just to women supporting women. But I also have heard women have smaller hands, and the studies have shown that going to a woman dentist is supposed to be less painful. Hmm. So anyway, and she’s right across the street, so that helps, too. So your smile is beautiful. Well, thank you. Yeah. So let’s let’s switch to see what happens if you die and you don’t have a will. And like, I’m assuming this is all governed. Every state is going to be different, right? So in Nebraska, if you don’t have a will and you die, you still have to go through probate, right?
Tosha Heavican: Well, it depends.
Susan Reff: So the lawyer answer, it depends.
Tosha Heavican: It always just depends. Yeah, right. So without a will, sometimes you’ll hear the term intestacy, and that means literally without a will versus if you hear somebody say that they died in or excuse me, test state, test state means that you did have a will
Susan Reff: And feel like this is starting to get a little dirty. Right? Like medical terms for certain male body parts, it sounds like. So intentional intestate is no will test state is there is a will. Correct. Ok.
Tosha Heavican: And then in terms of whether or not we have to go to probate, there’s typically three questions that we
Susan Reff: Ask in probate what’s probate mean for people that don’t know?
Tosha Heavican: So probate is the process within the court system that is used to transfer assets of a person who died to the ultimate beneficiaries and then typically paying off creditors is also part of that. So like if the person who died had a credit card? Yeah, the credit card company is going to file a claim and then they get paid out of the estate, that type of thing. Ok. So and the probate laws are going to be based on which state that you lived in at the time that you died. So for example, if you’re a resident of the state of Nebraska and you die, then the Nebraska laws are going to apply to your estate. With the exception that let’s say I am a resident of Nebraska and I die, but I also own property in Arizona, the land. The land is going to be governed by the law of the state where it is located.
Susan Reff: Let me ask you this. Ok, you live in Council Bluffs, Iowa. You work in Omaha, Nebraska. You’re here a lot. What if you’re in a car accident and die in Omaha? Where would your
Tosha Heavican: State would be a probated in Iowa? Because that’s my residence. That’s where my domicile is, is the fancy word. So Iowa law is going to control the distribution of all of my real estate in Iowa and all of my personal property. So for example, if I have a bank account that I had opened in Rhode Island for some unknown reason, yeah, money cash is personal property, so it’s going to still be transferred based on Iowa law. Whereas if I owned land in Rhode Island, then that land would be transferred based on Rhode Island law.
Susan Reff: Ok. But the fact that you died in Nebraska really wouldn’t matter in that situation, correct? Gotcha.
Tosha Heavican: Ok. It’s based on where you live. So when we’re talking about whether or not we have to go through the probate process, whether you have a will or not, the three questions we’re going to ask What are the assets of the person who died? How were they titled and how much are they worth? Because in Nebraska and in most states, you know, a lot of these terms are going to be kind of across. Sure. Right. So in Nebraska, at least the floor or ceiling, however you look at it, is fifty thousand dollars in personal property and fifty thousand dollars in real estate.
Susan Reff: And these these things that we have to look at for assets, sometimes it seems like this should be pretty obvious. What did somebody’s own? Correct. But it’s not right.
Tosha Heavican: Right? And sometimes the information can get be difficult to get, for example, you know, like brokerage account and retirement account holders, a lot of times they don’t want to give you the information, right, especially if there’s beneficiaries listed on the account. You don’t want to tell somebody who’s not the beneficiary. Yeah, which matters for inheritance tax purposes, which is a whole nother conversation, but you know. But in terms of and why titling is so important with probate is because the probate court, whether you have a will or not only controls probate assets and probate assets are assets that are owned by the deceased person only that have no beneficiaries. So as an example, if you own a home with someone else, a typical example is a spouse. Mm hmm. If one of the spouses dies and the house is owned jointly, then the other spouse automatically gets it. That is not a probate asset, whereas if you are married and have a spouse but you, your name is the only name on the title, right? And then you die. Your spouse will have to probate your estate in order to transfer title to themselves.
Susan Reff: So I have a bank account that’s just in my name, but I have a beneficiary listed or a pod person payable on death. So would that not go through probate than to because I’ve got somebody listed? Correct? Yeah. But if it was just sitting there in my name, correct.
Tosha Heavican: So I had a case like that once were. And I try to advise clients, you know, especially where people are, have a spouse. A lot of times, not always, but most of the time they’re wanting to benefit their spouse. One hundred percent, I try to say, let’s see if we can avoid probate, at least on the first of you, to pass away just by using joint tenancy or beneficiary designations because I had a case once where the husband and wife husband passed away and and hopefully this happens to me someday. But they had forgot about a bank account that had like sixty thousand dollars in it. Well, you know, we’re above that fifty thousand dollar threshold. So the only way to get that money is to open a probate, which costs attorney money, attorney time. Yeah. So and in Nebraska, at least once you open a probate absent, you know very few exceptions. You’re open for five months before you can close by statute to be open for five months. And that’s credit for creditor protections, mostly.
Susan Reff: So when you open the probate, that’s notice to creditors.
Tosha Heavican: There’s a notice that runs in the newspaper once a week for three consecutive weeks, and they have 60 days to file their claim.
Susan Reff: So in your experience? Do creditors come forward?
Tosha Heavican: Yes, all the time.
Susan Reff: Is there kind of a dollar amount? Like, I mean, if I oh, let’s say my dentist, I didn’t ever pay my bill, but it’s only one hundred bucks and I die.
Tosha Heavican: Oh yeah, I’ve had bill. People put in claims for thirty five dollars. Really? Yeah. And then there’s some places that once they have been notified that somebody passes away, they just write off their bill. Right. So and it’s kind of specific to whoever the creditor is. You know, some creditors, if it’s bigger numbers like for, for example, like Nebraska Furniture Mart, if you have, you know, several thousand dollars that you owe on a refrigerator that you bought. So then your options are. Pay off the bill, right? Or sometimes because they would have a secured interest in that refrigerator. You can return the refrigerator now. It’s not going to be worth the full amount, right? But that then potentially would reduce the amount of the claim. So you can you can do in-kind payback, right?
Susan Reff: Interesting. Ok, so that’s one way to to like, pay off a creditor, I suppose, is give them the stuff back, right?
Tosha Heavican: You see that with vehicles a lot. Ok. But as people know, you know, once you drive it off the lot, it’s typically loses a lot of value. So you’re usually the estate is still going to owe some money on the debt, but it can significantly reduce the debt if you return the item that it is secured on.
Susan Reff: So what happens once that notice goes out and we’re kind of knee deep in probate court,
Tosha Heavican: So we kind of wait. So once once the creditor notice goes out, we’re kind of collecting assets. So at that time, we set up an estate account. So the estate has its own tax ID number and
Susan Reff: This all costs money, right? Right. Yeah.
Tosha Heavican: So it’s not an easy process to go. I mean, it is if you have somebody that’s helping you right to go through it by yourself, I think would be very difficult, right? You know? So you’re setting up an estate account, you get a tax I.D. number for that account. You have your letters, a personal representative because you’ve been appointed by the court and then you’re collecting the assets. So you’re collecting the bank account money you’re collecting, you know, you’re figuring out what’s going on with the house if they own the house, if they owned a vehicle, if they have, you know, retirement accounts and figuring out what are these assets and how are they how are they insurance, insurance, all those kinds of things. So because if we’re already in probate court, then we’ve identified that we have more than fifty thousand in assets. Right, right.
Susan Reff: Let me ask you this. You mentioned a personal representative and I know when I write a will, I get to pick who is my personal representative in these cases where there’s no will? How is the personal representative figured out? And I’m guessing there’s a lot of fighting about this.
Tosha Heavican: Well, there could be. There can be a lot of fighting. Yeah, and it’s a great question. So under the probate code, which is the statutes that kind of control how probate works, there is a statute for priority of appointment. Ok. So if a person and when you’re opening an estate, at least in Nebraska, there’s kind of two avenues you’ve got informal or formal informal typically is it was more common. Sure. And you can do it without a hearing and you file the paperwork and the court looks at it and says, OK, everything looks great. We’re going to open the estate. But in those cases, when you’re filing informally, you have to be the person that has priority of appointment. Ok, OK. That’s the only way that you can get that open estate without a hearing. So the first person who has priority of appointment is going to be somebody named in a will. If there is no will, then the next person who’s going to have priority of appointment is a spouse who is also a beneficiary or DVC of the estate.
Susan Reff: Ok, so if I die without a will, it would be my husband. Correct.
Tosha Heavican: And then and then we go to adult children. So then so in Nebraska, obviously we have you only have one spouse, right? So that’s only one person that would have priority. But if you’re in a situation where maybe the decedent didn’t have a spouse or the spouse predeceased them, so then you get down and maybe there’s three adult kids. Well, in order to open informally, you pick one or two. You can have personal representatives if you want, but then the other one or two that aren’t doing it. They have to sign a waiver of their right to appointment and nomination. So getting all those signatures. But if you can get all that stuff and file it, then you don’t have to have a hearing. But if I go in there, I think I’ve shared before on this podcast, I’m one of six kids, right? So my parents pass away and I say, Well, I should be it because I’m a lawyer and I do this every day, right? But if I don’t have those signatures from the other five, then I have to provide notice to them and set a hearing. And then everybody that costs money. Right?
Susan Reff: And all the tickers run
Tosha Heavican: And you have to publish notice of that hearing, which is once a week for three consecutive weeks. So you’re looking at at least probably five weeks before you’re getting in court. Yeah, wow. So you’re just kind of hanging out, right? Whereas if you can do that informal route, it’s much quicker, less expensive. And if you have a will then and that and you nominate you, you nominate your child to be the PR and they accept. They just filed the paperwork and it gets opened right and it takes a couple of days.
Susan Reff: So without a will, even just opening, it takes a few more steps. Yes, that’s if if, if you have to go this like multi step process to get the PR right.
Tosha Heavican: I mean, I’ve had cases where, you know, a person passed away and they had one child. Yeah, well, obviously that person is the person, right? And those are more simple. But if you’ve got multiple kids and then then you get into the issues of, you know, family dynamics or I have cases where the siblings are estranged. They’re like, you know, my brother’s homeless and I have no idea where he lives. You know, like and so then you’re you have to publish anyway because you have to try to find these people. Yeah. Wow. So it’s it can get more complicated if you don’t have things, you know, kind of written down. Yeah. So because so then you we’re in probate, we’re open, we’ve collected our assets. We get to a point where we don’t think any more creditors are coming in, right? So then we look at the numbers is are we in the positive or are we in the negative? We’re in the positive. We’re going to try to negotiate those creditors a little bit. Usually you can get somewhere between 70 and 80 percent of what they have claimed, depending on what the claim is. So they’ll
Susan Reff: Write off 20 to 30 percent, maybe
Tosha Heavican: Right, sometimes without really asking too many questions. They’ll they’ll they’ll say, If you write me a cheque today, I’ll give you a discount, right?
Susan Reff: It’s kind of like collections when you’re alive, still right? Or here’s my fridge with all the moldy food in it. Take it. Right, right. Exactly. Car with all the junk dents. Yeah, yeah. Dense.
Tosha Heavican: And so then we kind of go through that period where we say, OK, we’re going to pay these creditors. And then when you send them a cheque, the lawyer sends a satisfaction and release. So then the creditor can say, I’ve been paid, I’m not owed any more money and I’m not going to sue you for anything else, because then that shows the judge. You’ve satisfied the claim that has been filed. Ok, if there’s not enough money in the estate, then you’re upside down. Then you have to kind of figure out a schedule of distribution and you basically propose some sort of probation to these creditors.
Susan Reff: And that could lead to a big old fight.
Tosha Heavican: Yeah, and more attorney time and more more fees.
Susan Reff: And that’s crazy because the person who incurred the debt is no longer here. And their estate doesn’t even really have the money to pay.
Tosha Heavican: And so there are conversations that I’ve had with people where I say, do nothing. I mean, because after so many days, a creditor can force a probate if they think that there’s money. But a creditor is not going to want to pay an attorney $5000 to go argue in a state that doesn’t have any money. Right. So really, the only time where even if you have lower asset amounts where it would be required is to transfer real estate. So if you even if, let’s say, the tax assessed value, because that’s typically what they use to determine whether a probate is required, if the taxes has value on the property is forty thousand dollars. Technically, you don’t need a probate, so then you’re looking at transferring an affidavit for real estate, but you still have to do an inheritance tax determination to release the county’s lien. Oh, sure for inheritance tax.
Susan Reff: So you’re still filing it, which is another lawyer, right?
Tosha Heavican: Well, I do. So I do inheritance tax determinations as part of a state cases and or just stand alone. If you have a trust and you don’t need a probate, then you just do the inheritance tax determination.
Susan Reff: But but an attorney for the government reviews that right?
Tosha Heavican: County Attorney Yeah, yeah. The county attorney reviews that for the civil side and they have to sign off on it. And then it’s submitted to the judge and then the judge signs off.
Susan Reff: So it’s still a process a lot of hands in the in the estate world.
Tosha Heavican: Yeah, yes, there definitely are.
Susan Reff: So what happens to? So now we’re in the world where, OK, so let’s say we’ve got all the the creditors figured out or there aren’t any or debtors or whatever we’re calling. Creditors, creditors. At what point does can the probate be finalized then?
Tosha Heavican: So we satisfy creditors, then we we do our inheritance tax determination, and it used to be at least my understanding was if no tax was owed, then you wouldn’t necessarily have to do a determination. But more and more judges are wanting. They’re wanting the filings in the probate to show that there’s no tax owed. So you’re still having to prove it. Yeah, you’re still having to do the determination of tax and get the signature from the county attorney, even if you don’t have to pay any tax, right? So we get done with that. And then once we’re past our five months because because so then you can close formally or informally similarly to opening informally or formally. So closing informally, you’re going to do a schedule of distribution where you’re saying, you know, this is who’s getting the money of the beneficiaries, right? So if there’s two kids and they’re each getting half, the scheduled distribution is going to show, OK, they got half of this account and they got half of this account and we issued a new deed in their names if we didn’t sell right, that type of thing. Typically, the personal representative has to do an accounting unless the the beneficiaries waive it, which is pretty common if if people are getting along, they would waive right because they don’t want to pay a lawyer, you know, hundreds of dollars to write an accounting when they don’t even care what’s in it.
Tosha Heavican: Right? Right, so they can waive that. And then we do a statement of informal closing where we’re saying, Judge, we’ve done everything we’re supposed to do. We’ve paid everybody and we want to close. And then if there’s nothing pending in the estate for within one year after the date that you filed that closing statement, the court will automatically close it. So technically, it stays open for a year after you informally close, but you’re not doing anything. It’s just sitting there, OK? Versus if you’re doing a formal closing where you’re saying, I want as of the date that the order is signed, this estate is done. Nobody’s coming back. Nobody’s filing nothing. You have to do. You file a petition or application to close formally and then you publish notice and you send notice to everybody that you have contact for and you set it for hearing. And then you have to go in front of the judge and you prove up your accounting and say, here’s everything I’ve done. And the judge says looks good and they sign an order formally closing the estate and then it’s done as of that day.
Susan Reff: So now I’ve heard sometimes that these personal representatives can pay themselves for the time it takes to work on the case. Is that true? Yes. So how has that figured out?
Tosha Heavican: So what’s interesting is that the case law in Nebraska typically just talks about a reasonable fee. Right? Ok. Some states like, for example, Iowa, because I also do work over there. Iowa sets the personal representatives fee based on a percentage, so they get two percent of the value of the estate. Ok. Lawyers are also there. Fees are set by statute, whereas in Nebraska, most of the time attorneys in Nebraska are charging hourly, especially in Omaha and Lincoln and some of the bigger areas. Sometimes in the smaller towns. You’ll see where they do percentage, but it’s more competitive. And to me, I think more fair, right? Because I’m just being paid for the work that I did because it’s not fair for somebody who has a $10 million farm to have to pay two percent if I have to do the same work. Yeah, right.
Susan Reff: So if you know what the asset is to probate, it
Tosha Heavican: It it doesn’t change whether the farmers were 10 million or it’s a house that’s worth fifty thousand dollars. It’s the same process in terms of probate. Yeah, now you may have more administrative expenses, whether it’s appraisals or, you know, if you have to do, sometimes you have to do environmental stuff with farms. Yeah, right? So then the fee just increases, but it’s just based on the hourly work rate. So but personal representatives can pay themselves, and if everybody is in agreement, then you know, the beneficiaries just say, OK, you’ve been paid this fee and we’re all fine with it and there’s nothing to argue about. Right. So I’ve had clients where I think there potentially could be an argument. I encourage clients to keep track of their time. You know, like just on a calendar like, I worked on this for an hour today or
Susan Reff: Whatever, making phone calls, organizing the paperwork, blah blah blah.
Tosha Heavican: But I try to get ahead of that as much as I can like. And sometimes clients will waive their fee because if you were taking a fee as a personal representative, that’s income to the as far as the IRS is concerned, which means you have to pay income tax on it.
Susan Reff: Yes.
Tosha Heavican: Well, whereas if you can receive it as part of your your beneficiary designation, you know you’re as a beneficiary. You’re only at most in Nebraska paying the inheritance tax rate, which is potentially lower than your income tax bracket. Right. So then you get into what makes more sense financially, right? Take it as income or take it as a distribution.
Susan Reff: So. So maybe that person, if they’re if it’s a 50 50 situation like two siblings, one of them is going to be the PR. They would agree that person is going to get a little bit extra.
Tosha Heavican: Well, potentially or sometimes they’ll just they just won’t take a. Sure. Right. Or but like in cases like I had one where it was a bigger estate and there was eight beneficiaries. And so what we did is I sent out basically a letter to everybody and I’m like, Here’s the proposal, and I sent them a spreadsheet of this is how much money there is. The the personal representative slash trustee is proposing a two percent fee, and that’s what this number is. And if you’re all in agreement, sign this paper. You know, and I got back all the signatures. And so then it’s just done with and
Susan Reff: Probably some of those beneficiaries are just grateful someone else is doing the work. Absolutely. And they understand time is money in that person deserves to get paid for helping them get their money because that’s what the personal representative is actually doing. Yep.
Tosha Heavican: And usually you find most of the time by the end of it, when people are getting sent checks, they’re just happy to sign and and they’re like, sweet. Now I have this awesome money
Susan Reff: And I didn’t have to go to court right ever and fight with my siblings and or other beneficiary family members. Yeah, right. Yeah. Ok. So we’ve closed probate. Everybody got their money. Then what anything is that it?
Tosha Heavican: I mean, that’s it, you know, barring some sort of and I haven’t had an occasion recently to research in terms of statute of limitations. I know that trust action. So like if you have a trust that holds assets that are being distributed, once you receive that, accounting your statute of limitations is one year you have to file. If you’re going to complain about something, they yeah, you got one year. I don’t know off the top of my head these states, but it’s I mean, I think in these types of situations, it’s usually pretty limited. If you’re going to be complaining about something, you’re usually filing to remove the personal representative during the estate process because you don’t like what’s happening or whatever. But yeah, you close. You know, whether informally or formally you close the estate and then, you know, hope everything went was supposed to and you’re done.
Susan Reff: Yeah, in that situation. Still, does the personal representative still need to file if there was any income to the estate during the time a tax return?
Tosha Heavican: Yep. So a lot of times we have that conversation about doing a tax return, and I always refer clients to a CPA because I’m not a CPA, but my based on my knowledge,
Susan Reff: Because in a state, whether you have a will or not can earn income, correct.
Tosha Heavican: But most of the time, depending on what your assets are, I would say, and whether depending on the size of your estate, a lot of times there isn’t enough income to require a return,
Susan Reff: But you let a CPA and make that decision. Exactly.
Tosha Heavican: Yeah, exactly. I tell them, here’s here’s a person, call them and just, you know, belt and suspenders so we can all sleep at night. You know, you need to do their final tax return because most I mean, not all the time, but in most cases that I’ve been involved in. Anyway, there’s a return like the IRS pays money back for the income in the year that they died. Right, right. So like, if a person died today, they would have income for all of twenty twenty one, almost that they would need to do a final tax return. But then the estate return for twenty twenty one would be probably nothing. And twenty twenty two, when you would be closing, hopefully is nothing. And estates. So in Nebraska, they try to get you to have an estate completely done within like a year. And I think it’s like a year in four months or something. So then if you’re not close by then, then the Supreme Court is wondering why are you still open? Mean you have to start going into court every couple of months to talk to the judge and explain why you’re not closed yet? So they kind of try to keep you on track a little bit.
Susan Reff: That doesn’t happen to us, though, because we’re really efficient, right? Yeah. I think the
Tosha Heavican: Only times it’s really happened to me is just when you’re waiting, not like I’ve been waiting on the IRS in a case. Oh, almost two years. Yeah. And I’ve seen like a states where I know of a state one time where the person owned property in another country. Oh, and so if you have to probate in multiple states, so here’s another tip if you own if you own property in multiple states, it’s a good idea to get a trust. But let’s say that you don’t have one. So you would open a Maine Probate in your state that you lived in at the time you died. And then you would have to open ancillary probate in all of these other states and countries that you also own property in in order to transfer based on their laws so that everything can come together as one, right? So. Wow. It can be. So if you’re waiting on other courts that have different processes, you know, you just have to go into the judge and say, Hey, we’re waiting on people in France. Sorry, no against nothing against France.
Susan Reff: And we’re going to we’re going to go there and just see how things are going. And I’ll take my lawyer, Tosha with me and she’s going to check on my farm property and meet with my French attorney. I love it. Yeah, go. Let’s do it. Let’s start marketing. Well, apparently we’re doing really well on our podcast in Honduras. I’m not sure if there’s property out there that we could buy. There you go.
Tosha Heavican: Yeah, Germany too, right?
Susan Reff: Yeah, I think it was Germany. Yeah. Well, Tracy always says that’s right. That’s. So I mean, to wrap up, like at what level of assets can people say, like, I’m probably OK without a will and at what level is it like I should have a will? Or is that not how you look at it?
Tosha Heavican: Well, and that’s what I was going to say. I think it’s not necessarily so much what your assets are and how much they’re worth as it is. Where do you want your assets to go? Because and I’ll use myself as an example, I am one of six children. I was adopted by my stepdad, so if my my father passes away second, right, if there’s no will, then all six kids are benefited under the intestacy statutes, right?
Susan Reff: Because you are all direct beneficiaries from him,
Tosha Heavican: Right under the the fancy word is consanguinity right, which is by blood or in this case, adoption, right? So we’re considered his children legally, all six of us. So we would all receive a one six share of his estate if he didn’t have a will. But conversely, my mom, she did not adopt two of the three of the kids. And so if my mom passes away second without a will, let’s say she receives everything from my dad and my parents have a will and they’ve taken care of this because I made them. But but in the situation
Susan Reff: Where the crack in the whip tosh, you
Tosha Heavican: Know, in a situation where they didn’t have their wonderful daughter telling them what to do.
Susan Reff: And so your dad dies first.
Tosha Heavican: So and his everything goes to let’s say everything goes to
Susan Reff: Your mom, right?
Tosha Heavican: But under the intestacy statutes, because they don’t share all the same children. My mom wouldn’t receive the entire estate, right, which may or may not be what my dad wants, right? And then let’s say, OK, then my mom passes away second, and she’s received whatever she was going to receive. My dad’s three children are not in her chart of consanguinity, so they would receive nothing their
Susan Reff: Stepchildren to your mom under the law, stepchildren don’t
Tosha Heavican: Receive. Yeah, they’re not entitled to anything under the intestacy statutes, which may or may not be what they want, right? I mean, I know personally, obviously, my parents, that’s not what they would want at all. They would want us all to share equally, right? And so but the only way to accomplish that in that type of a situation, you have to have a will. Otherwise, the intestacy statutes will govern and and it’s pretty black and white. There’s not a whole lot of negotiation there.
Susan Reff: So if you want to make sure that certain people get certain things, you need a will. Absolutely. That’s the best way to do it. Yep. Well, so if this didn’t inspire people to write a will, I’m not sure what would, because no one wants to end up at the end of the day after a funeral and after a passing trying to figure out who’s going to get
Tosha Heavican: What and arguing with people. You should be spending that time with your family, grieving and sharing memories and, you know, being together and and that sort of thing not arguing in court about who gets mom’s house, right?
Susan Reff: Well, thanks, Tosha. This has been awesome. I I always learn something new whenever I talk to you and you know, I, I just can’t imagine having to go through this and not having someone like you on my side. So thank you. Well, you’re very Sh8 all of this. And now I know what can sing whatever
Tosha Heavican: Means consanguinity
Susan Reff: Quantity. All right. See you next time. Bye bye.
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Ever wonder what happens to your stuff after you die? Well, it turns out that the court has a say. Enter Tosha Heavican: Death Esquire – she’s here to give us an inside look at Probate and Estate Law. In this episode, we’ll be discussing all things related to probating an estate. From understanding how the process works to figuring out who gets what when all is said and done. So listen up – Tosha is about to drop some knowledge! Let’s get started!
What happens after a divorce? What are the different judgments and how do they impact you? In this episode Susan and Tracy cover all of those post decree tasks you need to know when your divorce is final. Once the divorce is final, there are a few things you need to think about. You’ll want to make sure that all the necessary judgments have been issued and that you understand them. Property division, alimony (if applicable), child support/custody—these are all important pieces for your post-divorce life.