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.
Probate & Estate: What You Need to Know
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!
Tracy Hightower-Henne: Your estate is what you own when you die. But what happens when your estate goes to court? In this episode, our resident death Esquire, Tosha Heavican, shares with you what you need to know about probate and estates.
Announcer: This is the Lady Lawyer League podcast. Omaha’s leading lady lawyers empowering women to be legal savvy, hosted by Susan Reff and Tracy Hightower-Henne of Hightower Reff Law.
Tracy Hightower-Henne: Welcome back to the Lady Lawyer League podcast. Today we are talking about how does probate affect your estate? And today we have Tosha Heavican, our newest partner attorney at Hightower Reff Law, to talk all about probates and estates and those rhyme.
Tosha Heavican: Yes.
Tracy Hightower-Henne: I didn’t realize those rhymed kind of probate estate state. No, that’s a full on rhyme. That’s legitimate.
Tosha Heavican: Okay, I’ll let you have it.
Tracy Hightower-Henne: Okay. But it is so. All right. So Tosha in our office does basically strictly estate planning, and I don’t do any estate planning. So every time I talk with you or hear you talk, I literally am learning things.
Tosha Heavican: I love talking about estate planning. You know, when I first went to law school, it wasn’t even really something that was on my radar. And then once I got my license and started working with an attorney who did estate planning, I was like, Wow, this is really fun. And you get to interact with clients and really kind of plan for things rather than. I think a lot of times the legal field is more reactive, whereas really with estate planning you can try to figure things out beforehand. So it’s kind of a cool tool.
Tracy Hightower-Henne: So divorce wasn’t on my radar ever as a practice area or in my life. Still, so far, right, neither was owning and operating a law office, so none of that was on my radar. And I feel like things sort of fall into your lap, Right? Right. Yeah.
Tosha Heavican: I definitely I always knew I wanted to be a partner somewhere, so. Woo!
Tracy Hightower-Henne: Congrats.
Tosha Heavican: Hey, that was a big check mark on the adult list.
Tracy Hightower-Henne: Is that a bucket list item?
Tosha Heavican: Yeah. Oh, yeah. It was a pretty big one and it is full. Full now. So what.
Tracy Hightower-Henne: Else? What’s one other thing on your bucket list?
Tosha Heavican: I really, really want to travel to Europe sometime. I don’t specifically know what countries, but definitely somewhere across the anywhere. The river. The big river.
Tracy Hightower-Henne: Oh well, that’s easy.
Tosha Heavican: Yeah. Yeah, I do that. Just making the time for it and choosing where and all those types of things.
Tracy Hightower-Henne: A lot of choices.
Tosha Heavican: Yeah, I know several people that have been different places and so just trying to narrow down what’s the best choice suite.
Tracy Hightower-Henne: I know I could talk all about traveling. I know.
Tosha Heavican: You are. You are a traveler.
Tracy Hightower-Henne: So and don’t forget that Iceland is in Europe. Some people forget that. Yes. And I love Iceland. So that could be one of your places.
Tosha Heavican: I’ve heard. It’s beautiful there.
Tracy Hightower-Henne: Okay, So tell us, what is an estate in all the the realm of the definition?
Tosha Heavican: Sure. So an estate is going to be what assets a person owned at the time that they passed away. So typically when someone dies, we look at what did they own, how is it titled and what is it worth? So when you think about planning, you try to think, okay, if I were to pass away now or in five years or in ten years or in 50 years, what things can I plan for so that if that happens or when that happens, this is I know in my mind what would the result will be? And so the estate is going to be anything that you own. Now, whether or not that’s distributed through probate or through other means depends a lot on how the specific item is titled.
Tracy Hightower-Henne: Well, and we talk a lot in our office about how you don’t need to have a big estate to have an estate plan. That’s true. That was our marketing quip. I think that’s a good way to say it.
Tosha Heavican: Well, and I, I sometimes will say to estate planning is for everyone, right? You know, part of estate planning is talking about surrogate decision makers or, you know, somebody who can step in and help you if you can’t make decisions for yourself. You know, a good example that I think maybe would resonate with a lot of people is if you have a grandparent who maybe develops dementia, right? So then they’re in a place where they’re still very much alive but maybe can’t make decisions for themselves that are in the best interest. And so then they need a power of attorney to step in. And so by doing those documents, which has nothing to do with how much money you’re worth, it allows somebody to step in in those moments rather than involving a lawyer to go to court and get a guardianship or something like that.
Tracy Hightower-Henne: Well, and people think about estate planning in a sense of like, I don’t really own very much, so why do I need an estate? And what do you tell those people? Also, I think the same people are like, Well, I’ll be dead, so I don’t need to worry about it.
Tosha Heavican: Right. And I mean, to your second question, that’s completely 100% true.
Tracy Hightower-Henne: Yeah. You will be dead if we’re talking about your estate probate.
Tosha Heavican: Right. And it really doesn’t affect you anymore. Right. And so a lot of times in the talks that I give and in the articles that I write and when I talk to clients and stuff, a lot of estate planning has to do with help. Bring out your family members. It’s less about helping yourself and more about helping your loved ones.
Tracy Hightower-Henne: So if you don’t really have much and you don’t like your family members, then screw it, right? Go to Europe.
Tosha Heavican: Right? Slide into home with $0.03 to your name, Right? I mean, I think that in terms of the powers of attorney, which again, really have nothing to do with how much money you have and more about taking care of you as a person. Those are some of the most important documents that I tell clients to think about and are not, in my mind, a huge moneymaker for attorneys. It’s not about it’s not about that. It’s about putting documents in place that allow somebody to have somebody step in. So, for example, my husband’s in a car accident and he’s in a coma. I can use his power of attorney to start making decisions for him rather than spending time and money in court, getting a judge to issue an order, filing annual reports and all of that kind of stuff. That is about helping yourself because you don’t want your decision maker worried about going to court instead of worrying about what your doctors are saying.
Tracy Hightower-Henne: So you and I just were talking about a recent case that you had where a spouse was incapacitated, sort of in a coma type situation like you just described. If your husband’s in a car accident, in a coma, you don’t automatically just get to be his power of attorney. Correct. And I think a lot of people don’t really understand that.
Tosha Heavican: Yeah, that’s true. That’s true. I mean, in some respects, frankly, it’s more of a practical consideration of how far will the hospital let you go. Right. And sometimes if they’re like, hey, we need a decision about this right now and you’re the spouse, what’s the decision then?
Tracy Hightower-Henne: We think you’re the spouse, I don’t know, standing here. Right.
Tosha Heavican: You know, but long term, if you’ve got you’ve got somebody who needs long term care, somebody who’s going to need decisions made for them on a regular basis, the hospital is not going to just let somebody because they have their own legal considerations. Right. Because let’s say that my husband wakes up and says, well, she’s not my pair of attorney and my brother is, you know, then they could get in trouble for not following what my husband’s wishes were.
Tracy Hightower-Henne: Then the hospital is calling their lawyer like, Oh, shit, Yeah, we thought that chick was his wife.
Tosha Heavican: My husband actually threatened me. Well, he didn’t threaten, but he said, I think maybe I’ll make my brother or my power of attorney. And I said, I think you need to find a new lawyer, then.
Tracy Hightower-Henne: A divorce lawyer. So we state is all your stuff, right? What is probate then?
Tosha Heavican: So probate is a court proceeding that allows you to transfer assets at someone’s death. And there’s certain statutes that apply as to whether or not you have to have an estate in order to transfer assets. So we define probate assets as an asset that is in one person’s name only with no beneficiaries. So if you own a house, for example, in joint tenancy, that’s not going to be in probate and it also won’t be controlled by your will. So that’s another common misconception, is that, well, my bank account has my son’s name on it because he helps me pay bills and there’s nothing nefarious going on and that’s great. But then my will says everything will be split between my three kids, so it’ll be fine. The problem is, is that when Mom dies, son on that bank account legally is entitled to the entire balance and he’s not legally required to share with his siblings under the will.
Tracy Hightower-Henne: Right.
Tosha Heavican: Because the will doesn’t control non probate assets. The will only controls assets that are in one person’s name only with no beneficiaries.
Tracy Hightower-Henne: So it’s you have to be intentional. If you are creating an asset jointly with someone else, like you have to be sure if you die, you want them to have it.
Tosha Heavican: Absolutely.
Tracy Hightower-Henne: And I think a lot of sort of misconception to around that maybe you call it type of long term long care planning and adding someone to your bank account just to help you pay bills, because that’s easier, right, when you go to the bank, like, oh, you can sign this check now, too. And maybe it’s not explained very well to some people.
Tosha Heavican: Absolutely. And that’s, again, where those powers of attorney come into play. If you are rather than putting that person on your bank account, have them be your power of attorney. Because the other thing to remember, too, in terms of adding people to your house or your bank accounts and a joint titling way you bring with them all of their creditor issues. So let’s say you and I are in have a joint.
Tracy Hightower-Henne: Bank who has the bad credit between you and I. I will in this situation. Yes.
Tosha Heavican: So you and I have a bank account together and then I go out and I rack up 30,000 in credit card bills. They can come after that account. Even if I’m only on your account to help you pay your bills. Right. So you have. To think about kind of those things. The other thing that’s always interesting to me, and I think probably from the divorce world, you run into this a little bit to where it’ll be like a, you know, a girlfriend and a boyfriend or, you know, two girlfriends or two people that aren’t.
Tracy Hightower-Henne: Married that buy a house together.
Tosha Heavican: They buy a house together and they’re like, we love each other. And, you know, we’re just going to have this house together. And then they break up because real world happens, you know? And then it’s and or I’ve had a couple recently where the bank says, Och, well you need to be on the deed for whatever reason. But, but so both names are on the deed but only one of them’s on the mortgage and then you know, always then what happens is the person who is not on the mortgage is the one that ends up not moving out. So then the person who’s on the mortgage is paying for the other person to just live in there. And they’re like, Well, my name’s on the deed. You can’t evict me. I mean, entitling is so important in estate planning.
Tracy Hightower-Henne: Yeah, so, so important. And a lot of that information, though, really is through an estate plan, right? Yes. And part of that idea of planning your estate or doing estate planning with a lawyer.
Tosha Heavican: Yes, absolutely. Absolutely.
Tracy Hightower-Henne: Google doesn’t really.
Tosha Heavican: Know.
Tracy Hightower-Henne: And Google is not helpful.
Tosha Heavican: And legal zoom, like if you don’t fill in the boxes. Right. Like, it’s not going to be right.
Tracy Hightower-Henne: If you don’t check the right box. Yes. It’s going to spit out the wrong forms. Right?
Tosha Heavican: Right.
Tracy Hightower-Henne: Because you file so oh, so legal zoom. You can do your estate plan and your will.
Tosha Heavican: Yeah. Oh, but.
Tracy Hightower-Henne: It’s like TurboTax if you hit the wrong button. Yeah, you’re paying the wrong tax.
Tosha Heavican: And then I had a I had a case once where the guy did as well on his own, and he tried really hard, but he didn’t do it right. He didn’t sign it right. So then I still had to do so. When someone dies, if you have to open an estate, you can do an informal or a formal and there’s different rules for each one. I would say the bulk of estates are opened informally, which means you don’t have a hearing because you meet certain requirements. Well, because he didn’t sign as well, Right. We had to spend an extra probably $750 in expenses and attorney fees to run a notice and to have a hearing in order to have the court say yes, even though he didn’t sign this right, it still is. Well, you know, wasted time and wasted money.
Tracy Hightower-Henne: So So if someone’s going through probate, what’s that timeframe look like versus if you had done your estate plan correctly and you didn’t have to go through probate.
Tosha Heavican: So an estate that has to be probated in the state of Nebraska by statute has to be open for five months. Oh, so.
Tracy Hightower-Henne: I didn’t even.
Tosha Heavican: Know that. Yeah. So let’s say that someone passes away and you’re the personal representative. The day that we get the estate open and you get your what are called letters of personal representative, and it’s just a piece of paper that says Tracy’s in charge. Basically.
Tracy Hightower-Henne: What if I don’t want to be in charge?
Tosha Heavican: You can decline to serve. You don’t have to.
Tracy Hightower-Henne: If somebody names, you know, many people, I want to be their personal representative.
Tosha Heavican: It’s not it’s not a fun job. But you can get paid under the statute. You can get money for it.
Tracy Hightower-Henne: But okay.
Tosha Heavican: So the day the order is entered that appoint you, you cannot file your closing by verified statement for at least five months after that. And it’s for creditor protections because so kind of in a nutshell, 30,000 foot view. We open the estate. As soon as that happens, by statute, a creditor notice is triggered. So that means that something runs in the newspaper once a week for three weeks to say, hey, so and so died. If they owed you money, you have 60 days to file a.
Tracy Hightower-Henne: Claim so that a creditor is a person who is owed money from someone. Right?
Tosha Heavican: So I pass away and I have a 3000 bill at Nebraska Furniture Mart. They can file a claim in my estate to say, Hey, Tasha owed us three grand for a couch or whatever.
Tracy Hightower-Henne: Yeah.
Tosha Heavican: So in the meantime, then you have 90 days, the personal representative. So in this case, you 90 days to file an inventory. And so the inventory key is what did the person own at the time they died?
Tracy Hightower-Henne: You had a couch?
Tosha Heavican: I did a really nice one, but it has a loan on it. I guess. 3000.
Tracy Hightower-Henne: You guys 0% interest, right?
Tosha Heavican: That’s right. So what what did she own by herself? What did she own jointly? Because even though joint assets are not probate assets, they are still taxable in the state of Nebraska. So in Nebraska, we have an inheritance tax. There’s one of five states that still has one.
Tracy Hightower-Henne: And we’re only one of five. See, I learned all of this all the time.
Tosha Heavican: One of.
Tracy Hightower-Henne: Five. Is it going to go away any time soon?
Tosha Heavican: See, they want to. And so the real estate Probate and Trust section, which I’m a former president of, we have been pushing to get rid of the real or the inheritance tax. The problem is, is that the counties get so much because it’s paid to the county, so they get so much money for it. I mean, I think so. And I know the rates have changed and I should have looked that up for today, but. Recently or prior to the most recent change that will be coming into effect. So spouses don’t pay any tax. Like children, parents, grandchildren, grandparents, those types of beneficiaries, they would pay 1% above 40,000, which is not a huge number. But if if you were to benefit nieces and nephews, so like the family members that are out, if you think you know parents and children below you and then the people on the outside.
Tracy Hightower-Henne: Those that’s the family tree here you’re doing.
Tosha Heavican: Yes, the family tree, Right. It’s called consanguinity is the fancy word, which means by blood.
Tracy Hightower-Henne: Yeah.
Tosha Heavican: So siblings siblings are 1%, but nieces, nephews, aunts, uncles, there are tier two beneficiaries, so they have a 15,000 exemption, but their tax rate is 13%.
Tracy Hightower-Henne: Which, interestingly, when we talked about same sex marriage, probably in season one and two, one of the things is before same sex, same sex couples could get married if they were a couple and they weren’t legally married. Their inheritance tax was like 17%.
Tosha Heavican: 18. Yeah, because they were a tier three beneficiary, so non related person. So if I gave you any of my assets, you would have a 10,000 exemption and above that you would pay 18% to the county. So I mean, I’ve had I’ve had estate cases where the inheritance tax bill was over $100,000. And you know, the counties are like, well, where’s that revenue going to come from if you get rid of that inheritance tax?
Tracy Hightower-Henne: What if your entire estate or the majority of it is going to a charitable organization?
Tosha Heavican: Zero tax. Oh, charity. Yeah. Charities don’t pay any taxes.
Tracy Hightower-Henne: Okay. That’s good to know. I mean, that would make sense because if you’re giving a charitable organization a donation during your life, it’s.
Tosha Heavican: Which is so from the planning side of it. Then I talked to clients all the time and I say, Och, do you, do you want to make charitable donations? And if you do, do you have qualified assets, meaning pre tax money like a 401 K or an IRA, if you do give whatever amount or percentage to the to the charity from the qualified dollars because that’s going to reduce your taxable estate.
Tracy Hightower-Henne: Also, legal zoom probably doesn’t tell you all of that.
Tosha Heavican: No, I doubt it. It’s probably like I don’t even think it’s there’s.
Tracy Hightower-Henne: No box to check even there’s.
Tosha Heavican: Not like a little, you know, the little circles with the question marks that are like, learn.
Tracy Hightower-Henne: More.
Tosha Heavican: Oh, it’s probably not even that, I don’t think.
Tracy Hightower-Henne: Have you been on legal zoom to do an estate?
Tosha Heavican: I have not.
Tracy Hightower-Henne: I should. We should do it. No, you have to pay just to get there. Probably.
Tosha Heavican: Probably we should do it one time though, just so we can be like, here’s all the ways we’re better.
Tracy Hightower-Henne: Yeah. Okay. Tell us how much probate costs.
Tosha Heavican: So a good question in and it’s kind of interesting to think about different states do a different ways, right? So I’m I’m licensed in Iowa and Nebraska. Actually, I was a state. Fees for attorneys are set by statute and it’s a percentage of the value of the estate. And it used to be that attorneys out in kind of western Nebraska would do it that way. In the bigger cities like Omaha, Lincoln, Grand Island, and more and more you’re seeing attorneys charge hourly in Nebraska just because it’s more competitive. So normally my retainers for an estate case are usually somewhere between 25 and 3500. And then we bill hourly against that and then it costs it just depends on how much different things you have. I mean, within every estate case, you have to do an inheritance tax determination, which is those percentages that we were just talking about. And then it just depends on are people fighting, Are they not fighting? Is there one beneficiary? Is there 14? You know, because all those people get notice or they have to sign a way of notice. So it’s just it’s a lot of paperwork.
Tracy Hightower-Henne: Is it in probate then, that we would have a will contest?
Tosha Heavican: Yes.
Tracy Hightower-Henne: And that is not like a hot dog eating contest. No, it’s like someone’s contesting it.
Tosha Heavican: Yes. So my most recent.
Tracy Hightower-Henne: One of those words it like is a totally different meaning. Yes. Yeah. I’m just realizing.
Tosha Heavican: This. Yes.
Tracy Hightower-Henne: How cool.
Tosha Heavican: That’s why people who people talk about how the English language is like the hardest.
Tracy Hightower-Henne: One to live. Yeah. Because like.
Tosha Heavican: The same word means like.
Tracy Hightower-Henne: But you do say it a little differently. A contest or a.
Tosha Heavican: Contest.
Tracy Hightower-Henne: Contest?
Tosha Heavican: Yeah, I contest the.
Tracy Hightower-Henne: Will I.
Tosha Heavican: Hot hotdogs at.
Tracy Hightower-Henne: The contest? Yes. Would you ever do a hot dog eating contest?
Tosha Heavican: I don’t think I would throw up.
Tracy Hightower-Henne: Yeah. Were they dip the the bun in the water. It’s so gross. Like, who wants to eat that now?
Tosha Heavican: The most interesting one I think I ever watched. There’s this series on Netflix. So if you’re looking for something to watch this weekend, it’s it’s like weird contests that they went and filmed. Right. And one of the ones they did was pepper eating contest. Oh, gosh. And these people are up on this stage and. They’re literally, like, drenched in sweat, like buckets, and they’re like eating these ginormous peppers that are like, What is that? What is that scale where they say, How hot, spicy scale.
Tracy Hightower-Henne: There’s the name of it. Yeah. What is something Monitor, I’m sure.
Tosha Heavican: Is it? I feel like for some reason, Kelvin, I don’t know.
Tracy Hightower-Henne: That’s just a.
Tosha Heavican: Hot pepper scale.
Tracy Hightower-Henne: Hot pepper bomber.
Tosha Heavican: Yeah, it’s. It’s definitely a thing, but they measure how many numbers it is, and I don’t even think I could get past the one.
Tracy Hightower-Henne: But then also think about what it’s doing to the inside of your body, too. Nope.
Tosha Heavican: Nope.
Tracy Hightower-Henne: So, all right, before we go to the weird and wild questions from Google, yeah, everyone always is like, I want to avoid probate a vote. Avoid probate? That’s hard to say, right? Like, that’s always the thing that everyone says. So is that true?
Tosha Heavican: I think a lot of people do want to avoid probate because they they’ve heard that it’s this horrible place. I mean, I whenever I’m talking to people about planning. Right. In terms of is this a consideration for you, I tell people, you know, you can do an estate plan that avoids probate and I’m happy to help you. And if that’s important to you, let’s do it. If it’s not important to you, then that’s fine, too. It’s not the end of the world. People go to probate every day, right?
Tracy Hightower-Henne: Right. Because you’ll be dead. And do you care or do you not care?
Tosha Heavican: Exactly. Exactly. And so and some of it to a bigger consideration for me when I’m talking about clients with probate versus non probate using trust documents, which is the the chief way to avoid probate, you can use those as a way to give some longevity to your plan. And by that I mean let’s say that you’re giving some money to kids, but then you want to hold on to some money for grandkids maybe, or you want to give money to your kids at certain ages or something like that. You can’t do that in an estate because the estate is opened, it’s administered and then it’s closed. So the trust allows you to to kind of have more control of the money if that’s something that’s important to you.
Tracy Hightower-Henne: Yeah, trust.
Tosha Heavican: So then you the trust kind of because the titling of assets, if the assets are owned by the trust rather than you, you don’t own anything at your death. There’s nothing to probate.
Tracy Hightower-Henne: And then no one can steal anything from.
Tosha Heavican: You and they can’t read about it in the court documents. Oh, yeah. That’s the other big thing about probate avoidance is that probate is public. So you can go down and look at any person’s estate, how much they were aware.
Tracy Hightower-Henne: There are nosy bastards. There are, yes.
Tosha Heavican: Well, and that’s where people they and then they send you. I get letters all the time on behalf of my clients. I see that you own a house on this address. And do you want to sell it? And you know, and it’s like, if I want to sell it, I’ll call you.
Tracy Hightower-Henne: Right?
Tosha Heavican: You know, But.
Tracy Hightower-Henne: But also. No, no. All right, let’s go to the oh, these are the questions from the top notch and very weird producers.
Tosha Heavican: Yes, I’m.
Tracy Hightower-Henne: Also from Google. All right. How does probate affect your estate? All right. That was the topic. What happens if my estate planning documents cannot be found? Dun dun.
Tosha Heavican: Dun. So that’s super.
Tracy Hightower-Henne: Like this is like an escape room question.
Tosha Heavican: Yes. Yes. So if your documents can’t be found, if you have a copy, then you can offer it to court and you would have to do a formal opening, which means you’d have to have a hearing in front of the judge. And a lot of this is just dictated by whether people are fighting or not. Right.
Tracy Hightower-Henne: If there’s a will contest or not.
Tosha Heavican: Right.
Tracy Hightower-Henne: No contest will. Now, how do you say it correctly?
Tosha Heavican: I don’t know.
Tracy Hightower-Henne: It’s not a hot.
Tosha Heavican: Contest.
Tracy Hightower-Henne: Contest. It’s a.
Tosha Heavican: Contest, but then it’s a.
Tracy Hightower-Henne: Contested. Yeah, there we go.
Tosha Heavican: Contesting.
Tracy Hightower-Henne: Oh, this is difficult, right? Okay.
Tosha Heavican: If everybody’s in agreement, everybody signs and no one’s contesting. Correct.
Tracy Hightower-Henne: Then they can go have a hot dog eating contest.
Tosha Heavican: Right after they see the judge and the judge signs the order and says everything’s fine, you can use this. Well, if somebody is not agreeing, somebody is contesting the will.
Tracy Hightower-Henne: Not contesting. Yeah, correct. Yeah.
Tosha Heavican: Then you would basically have to prove what the Grantor’s intent, which grantor is the person who died. And it gets significantly more difficult because the statute requires an original signature on.
Tracy Hightower-Henne: What if what if you can’t even find a copy?
Tosha Heavican: Then how do we know what ever even existed? If you don’t have any sort of document, then it’s going to be what’s called intestate, which means it’s going to be distributed as though there was no will.
Tracy Hightower-Henne: That sounds like intestines and cells. The Latin for something else, I’m sure. All right. Next question. Moving on. Can a greedy or bad executor ruin everything? What is an executor?
Tosha Heavican: So the executor. Your personal representative. Kind of the same terms. That’s the person who administers the estate. So that’s the person that you appoint under your will to collect all the money and distribute it to the beneficiaries. So if it’s somebody who’s bad, I mean, they are under some court supervision. Normally, normally in estate is going to be unsupervised, which means the court’s not going to have any hearings unless somebody requests one. So if you think the executor is stealing money or something like that, then you would file something with a judge and go in front of the judge and say, Hey, Tracy’s stealing all of this money from the estate. We need an accounting.
Tracy Hightower-Henne: Tracy already said she didn’t want to be the person.
Tosha Heavican: Representative Susan. Then she’s not here.
Tracy Hightower-Henne: Make her.
Tosha Heavican: The executor.
Tracy Hightower-Henne: All right. Oh, we have an example. Next, say, a family found a letter and a shoebox in a deceased family’s member’s closet. How much power does a handwritten document have? I know what this is called.
Tosha Heavican: What is it.
Tracy Hightower-Henne: Called? A codicil?
Tosha Heavican: No.
Tracy Hightower-Henne: Oh, that’s like an addition. Yes. Oh, a hieroglyphic or something like that.
Tosha Heavican: Holographic. Holographic.
Tracy Hightower-Henne: Well, also the World Today, which by the time you listen to this, will be long gone, was glyph. And I was like that.
Tosha Heavican: L y.
Tracy Hightower-Henne: Ff Yeah. And I was like, That is half of a word called hieroglyph, right?
Tosha Heavican: I don’t know. Did you Google it? What? What’s the definition?
Tracy Hightower-Henne: I didn’t Google it.
Tosha Heavican: Oh I didn’t do world today, so now I’m going to get it in one try my mom.
Tracy Hightower-Henne: But I got lucky because I did glory. So I had oh, that was good d.
Tosha Heavican: L and a Y.
Tracy Hightower-Henne: And the Y in the wrong spot. Yeah. And I was like, Where the hell does this Why go if it’s not at the end?
Tosha Heavican: Yeah.
Tracy Hightower-Henne: And I was like, Well, it goes here. Oh and I already had.
Tosha Heavican: A, so you probably got it in like.
Tracy Hightower-Henne: Three. I did get it in three.
Tosha Heavican: Look at you.
Tracy Hightower-Henne: I’ve been starting with Beach every day and one.
Tosha Heavican: Where you one.
Tracy Hightower-Henne: Day it’s going to be.
Tosha Heavican: Beach because that’s because that’s where.
Tracy Hightower-Henne: You want to be. Yeah.
Tosha Heavican: Yeah, that’s a country song. There’s a country song on some beach, so. Oh.
Tracy Hightower-Henne: That song anyway. All right. All right.
Tosha Heavican: So holographic Well, so there are specific statutes about this. The entire thing has to be in their own handwriting, so it can’t be, like, typed and then just signed. Oh, because a regular like Will that’s typed has to be notarized or witnessed, and there’s all these rules about it.
Tracy Hightower-Henne: What if it’s magazine letters cut out?
Tosha Heavican: Oh, that’s like someone died, I think, like in a bad way.
Tracy Hightower-Henne: That’s like, serial killer, you mean? Yes, but that’s not in their own handwriting. But they kind of crafted it.
Tosha Heavican: I don’t think that would count.
Tracy Hightower-Henne: I think what if they cut out the magazine letters and then wrote over them?
Tosha Heavican: That’s a lot of work.
Tracy Hightower-Henne: I feel like this is a bar exam question.
Tosha Heavican: I think.
Tracy Hightower-Henne: I think that’s a good one. You know, it weird producers, you didn’t come up with that one.
Tosha Heavican: I think the big consideration for the holographic will is authenticity, right? Like they want it to be in the person’s handwriting because they want to make sure that it’s exact. I actually had a will one time where she wrote it like on a legal pad and it was like 12 pages. And then they had kept it in a filing cabinet and she had signed it in like 1987. Did it.
Tracy Hightower-Henne: Pass? Did anyone contest it?
Tosha Heavican: Nobody contested it. So everybody just agreed that everything was going to go to the grandson. But it was just kind of mind boggling to me, like, you know, because most of the time I’m like, if this is that important, like I feel like we should, it.
Tracy Hightower-Henne: Would be way more mind boggling if she cut out all the letters from.
Tosha Heavican: Magazine. That would have been weird and I would have felt scared.
Tracy Hightower-Henne: All right, let’s see. Last one say a mysterious murder is afoot. What do I do if I suspect the executor manipulated my grandma to change her will and then killed her in the library with the candlestick?
Tosha Heavican: How could you kill somebody with a candlestick? Well, I suppose it’s hard.
Tracy Hightower-Henne: My advice is write that shit in the envelope and put it in the game. Right. You won. Well, you don’t know. Oh, it’s still a mysterious murder. We don’t know who did it.
Tosha Heavican: Okay, so there’s two things going on here. Number one, the easier answer is that if you kill somebody, you can’t benefit from their death. So typically that means they’re going to skip over you. If you’re convicted of her murder, you’re not going to get anything anyway.
Tracy Hightower-Henne: Right.
Tosha Heavican: The other question is, though, let’s say you couldn’t prove that the murderer actually murdered grandma in terms of manipulating somebody’s will. So that goes to the whole this whole idea of estate estate work is what was the deceased person’s intent and that the whole goal of the law is we want to enforce what grandma wanted. So is this will actually what she wanted in her complete sound mind? And when you have somebody who’s been manipulated, we call that duress or undue influence. The problem is, is that those are historically extremely hard to prove.
Tracy Hightower-Henne: Because you have dead.
Tosha Heavican: Well, that right. Your key witness is no longer alive. And so. And you’re bringing in all these people who maybe were disinherited and you’re like, well, you clearly have a reason why you would say this Will was manipulated. Right? You have to prove a significant relationship. You have to prove they had opportunity. You have to prove that they benefited. I mean.
Tracy Hightower-Henne: They had opportunity with the candlestick.
Tosha Heavican: Well, right.
Tracy Hightower-Henne: I mean, I think there’s got to be a hefty candlestick, right?
Tosha Heavican: That’s what I’m saying.
Tracy Hightower-Henne: But you’ve played clue, right?
Tosha Heavican: Yes.
Tracy Hightower-Henne: All right. So you know how that it can happen. Yes. In the library.
Tosha Heavican: In fantasy land.
Tracy Hightower-Henne: Yes. All right. Well, awesome. Thanks for talking about probate and estate.
Tosha Heavican: Absolutely.
Tracy Hightower-Henne: On the Lady Lawyer League podcast.
Tosha Heavican: It was awesome. Thanks for having me.
Tracy Hightower-Henne: Thank you for joining us today on the Lady Lawyer League podcast. Make sure you subscribe so you never miss an episode. Check out our show notes for links on how we can help you with estate planning and all about Tasha Hoboken.
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Tracy Hightower-Henne: We’ll see you next week.
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