Twenty years ago, I contacted a lawyer recommended by a family friend to talk about getting divorced.
I’d wanted someone with a reputation for taking a collaborative rather than adversarial approach. My own parents divorced when I was 23, and I didn’t want to repeat their experience.
Two things I remember about our initial meeting: first, she told me that she worked for me, and would represent me as I wanted. But she also told me she’d just finished a case that took two years to resolve, and did more to enrich both her and opposing counsel than to serve the divorcing couple and their children. She didn’t like representing people whose definition of winning demanded that the other side lose. I checked off one box on my mental checklist of attorney requirements.
I tearfully began my story. She pushed a box of tissues towards me and told me she was there to help me manage the business side of my divorce. If I needed emotional support, I should seek it elsewhere. She then laid out the path forward and the costs involved.
With that memorable and no-nonsense introduction, my divorce journey began.
There’s a business and an emotional side to death as well. I began last year dealing with the emotional aspects of my mother’s death, but as the first year anniversary of her death approached, I became increasingly involved in the business aspects.
I have lessons to share. They’re from a layman’s perspective; you’d be wise to consult your own financial adviser and read the wealth of information available from financial services firms and publications before creating your own plan.
Revocable Living Trusts
Many people create trusts to protect their assets, and to avoid the special ring in hell reserved for probate court.
They’re great if you can afford to hire a lawyer to draw one up for you -- and if you make sure that once you’ve done that, you retitle all the included assets into the name of your trust. That doesn’t happen automatically; retitling your assets is your responsibility. It’s the kind of administrivia that’s easy to put off.
My mother spent thousands of dollars creating a trust and ensuring that one of her more complicated assets, the mineral rights to family property in Texas, was incorporated into it. That proved to be useless when, upon her death, I learned she had never retitled these complex assets into her trust’s name -- nor her home, her car, and a significant chunk of cash in her checking account.
What this meant is that everything not titled in my mother’s trust had to be assigned to probate court. The requirements vary by locality, but in my mother’s jurisdiction, it meant we had to wait at least 6 months after her death to ensure there were no claims upon the estate before dividing these assets. It has also meant accounting to the court for every transaction, and thousands of dollars in legal fees.
Under legal supervision, we were able to sell my mother’s condo. This was made more complicated since standard contracts had to be altered to comply with the probate process. We’re still working on retitling the Texas mineral rights into the name of the trust, which has involved getting legal counsel from that state to satisfy the requirements of the different companies who now own and operate businesses there. Cha-ching.
I know my mother never intended this; she spent a lot of money to make sure these assets were included in her trust. But that's what happens when you neglect to retitle assets under the trust’s name rather than your own.
Can you navigate probate by yourself? Sure. Keep in mind you’ll need to start while you’re still in the early stages of grieving your loss and dealing with the disposal of personal possessions. It’s a lot to take on, emotionally and mentally.
What do you do if you don’t have significant assets, or don’t want to pay the costs involved in creating a trust, retitling all your assets in its name, and regularly updating it?
Saving my son from probate hell
There are low or no cost ways to bypass probate. For bank accounts and certain other assets, it's called Payable on Death (POD); for vehicles, retirement accounts, and real estate, it's called TOD (transfer upon death).
One day, in a fit of pique over my frustration with the probate process, I spent several hours researching what I could do to protect my son from this ordeal. Over the course of one afternoon, I marched down to the county title office with the necessary paperwork in hand (downloaded from their website), and had both my car and home retitled to transfer on death, naming my son as the beneficiary. It cost about $60.
I also contacted the banks where I had accounts to arrange for each to be payable to my son upon my death. Each bank or credit union has a slightly different process, and not all of the people you talk to will know what it is – but be persistent. There was no cost to make these changes.
You should be able to set up Payable on Death for eligible assets throughout the U.S., but not all states allow transfer on death deeds. I'm lucky that Ohio does.
It's well worth finding out what you can do in your state to protect your real property and other assets from going through probate, incurring legal fees along the way (in our case, about $20,000 and counting). Not to mention the delays to your heirs in accessing your estate.
Talk to your financial adviser, if you have one; advising you on end-of-life money matters is part of their job. For example, mine had me designate the funds his firm manages as POD several years ago to avoid the legal costs of updating my trust.
Do it now -- or let others do it later
I just turned 63, and realized that my father was only 12 years older than me when he died. He hadn’t been sick and we had no reason to believe we would not have many more years together, until we didn’t.
End of life thoughts come in the shiver of mortality from each new age-related ache, or in the solitary silence in the middle of the night when we sense the passing of time more acutely. I’m still young enough to fear these moments, to push them away and say, “Not now.”
My mother’s death stripped some of that denial from me when I became her executor. Because she hadn’t dealt with all the practical matters, I had to.
So in death she’s taught me one final lesson. I like to think that in heeding its call, I’m bestowing one last gift of love upon my son and his family.