Probate, Wills, & Trusts: Searching for Answers

By Allan H. Nelson

My goal is to teach people how to avoid the pitfalls of probate by showing them how to draft their own Family Living Trust, and to teach the importance of a Living Will, a Special Power of Attorney, and a Pour-Over Will.
The examples in the book are a compilation of stories and problems with probate, and do not relate to any one person or family.

• Language: English
• Publisher: Xlibris US
• Release date: Dec 26, 2013
• ISBN: 9781493154296

Allan H. Nelson

• Korean War Veteran • Graduated with a BS Degree and a Master of Education Degree from the University of Utah. • Taught in public schools for 27 years along with being a Learning Coordinator for 10 years. • Established the Southern Utah Insurance School for renewing Insurance Licenses, which is ongoing. • Taught Estate Planning for over 25 years. • Married for 54 years with eight children. • An Eagle Scout as are my four sons. • Served a mission in Sweden for my church; also my for sons served missions. • Served two missions for my church with my wife, in Poland and in the Philippines.

Book preview

Probate, Wills,

& Trusts

Searching for Answers

ALLAN H. NELSON

Copyright © 2014 by Allan H. Nelson.

Library of Congress Control Number:      2013922813

ISBN:      Hardcover      978-1-4931-5428-9

               Softcover         978-1-4931-5427-2

               Ebook            978-1-4931-5429-6

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the copyright owner.

Rev. date: 12/18/2013

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Probate, Wills, and Trusts

Searching for Answers

I’ve often wondered why probate takes so long to complete. One big reason is that probate puts more money in the pockets of attorneys and others. I have found that the average probate time is around two years if it is not contested.

I was thinking about the probate of my cousin’s will. In November 1984, she had an attorney draw up her last will and testament. She had never married and had no children. In her will, she left money to a children’s home and a children’s receiving home. The remaining money was divided equally between my four sisters, my two cousins, and me. She had itemized items in the home to be given to named beneficiaries.

In September 1989, she died, and her estate went into probate. The final distribution of her estate was dated November 1991. However, it wasn’t until December 1991 that the distribution was made, making the time for distribution over two years. The total estimated estate value was $240,000; however, the final estate’s value was $154,000. It was never explained to the family why there was a difference in the amounts of money.

The attorney’s fee was more than $9,694. Taxes owed showed $38,362. I wondered why it was so much. The total fee for realtor’s commission was 6 percent. He received $9,360. There were other expenses that made the total $66,708.

In other words, $154,000 minus more than $66,708—this equals less than $87,292 to be distributed to the nine recipients. There were forty-three pages of notice of hearings and petitions to administer the estate, and no one contested the will.

I thought, Something is very wrong here. There must be a better way to avoid these types of procedures. It seemed unbelievable that so many people were involved in trying to get as much money as they possibly could through the probate system. The commission for the realtor, I thought, should have been $8,820. I had the impression that the attorney was not interested in helping to avoid some of the expenses. He was only interested in receiving as much as he could get. In addition, he didn’t follow the complete instructions in the will.

Searching for an Answer

I searched the library to look up probate and was surprised at the many books and materials on this subject. One book stood out—How to Avoid Probate! by Norman F. Dacey. Mr. Dacey began his book by taking to task the attorneys and their divisive ways of making huge amounts of money through probate. I had to agree with him.

I found that a living trust could have avoided the procedures in my cousin’s will, and I discovered that most wills are a poor way of distributing assets at death.

I discovered that if my cousin’s estate had been in a trust, it would have avoided all attorney’s fees, auctioneer’s fees, and much of the taxes. She could have listed items in the home that my sisters and cousins would have received but did not because of the attorney’s actions. It was my understanding that there were people who were interested in buying the house right after my cousin’s death, and we, as beneficiaries, could have negotiated the sale.

I read about the numerous abuses of probate and how attorneys are taught to build a will file. I didn’t quite understand the term build a will file until while being trained to sell IRAs. I was with my trainer who was attempting to sell an attorney a mutual fund for his retirement. The attorney took us over to his file cabinet and said, This is my retirement. A good portion of these wills will go through probate, and I will represent them as their attorney.

It is a common practice for attorneys who draw wills to ensure fat future fees by writing themselves in as executors, coexecutors, or trustees of clients’ estates. Often, too, they insert clauses specifically directing that they or their law firm be hired to probate the will. The New York Times quoted a knowledgeable probate attorney as saying that there is no