Mediation in Probate Court: What to Expect

The majority of Probate Courts in South Carolina have adopted the Supreme Court’s Mediation Pilot Program which began almost eight (8) years ago. Under this program, certain cases must be mediated before they are assigned a trial date. This post provides some basic information on what to expect at mediation.

What exactly is mediation?

Mediation is when individuals (usually with their legal counsel) attempt to find a solution to a legal matter instead of having the court determine the outcome. Mediations are conducted by a mediator, a neutral third party whose sole purpose is to help both sides reach an agreement. These mediators might be chosen by the parties or assigned by the Court.

How do I choose a mediator?

Just like any profession, not all mediators are the same. Factors such as experience and training can have a substantial impact on the outcome. If you have an attorney, they will likely make a recommendation based on the issues to be mediated, the personalities of the parties and even recommendations from the Court.

What should I expect?

Mediation is all about moving forward and finding a solution all parties can agree on in order to end the dispute. Mediators aren’t there to take sides, find the truth or force the parties to do anything they don’t agree to. While every mediation is different, they generally include the following steps:

Mediator’s Opening Statement: Once the parties are seated at a table, the mediator makes introductions, outlines the goals and rules of the process and urges both sides to work cooperatively toward a settlement. Clients are often nervous about sharing space with the parties they are opposing. If this applies to you, let your attorney and mediator know this in advance. While a joint meeting isn’t mandatory, it can be very helpful when the parties can agree to it.

Parties Opening Statements: Each party will have the opportunity to give his or her version of the story, providing insight as to how the issue has impacted them and providing the mediator with suggestions to resolve it. If everyone is in the same room, it’s often beneficial for everyone to hear these statements as their often a preview of what will be said in court.

Joint Discussion: Depending on the environment, the mediator may ask the parties to speak openly about what issues need to be addressed, what settlement conversations or negotiations have already occurred and what offers are currently on the table. Some parties prefer to do this privately when just the mediator is present.

Private Caucuses: Caucus is just a fancy word for meeting. During this stage, each party is given the opportunity to have a one-on-one meeting with the mediator to discuss their feelings, frustrations, evidence and any new insight on ways to settle the dispute. It’s crucial to share openly with the mediator and important to remember that everything you tell the mediator is confidential and can’t be shared without your permission.

Joint Negotiation: This is where the mediator gets to work and actively negotiates between the parties to attempt to resolve the dispute. While the mediator might make suggestions, they can’t force you to accept their recommendations. They will do their best to show each party the pros and cons of taking this matter to trial in an effort to reach a resolution.

Closure: If the mediation is success and an agreement has been reached, the mediator will likely put the primary provisions in writing as the parties listen. The mediator may request each person sign the document outlining the agreement that has been reached. If the mediation is unsuccessful, the mediator will identify any progress that was made and provide each party with their options, such as a future meeting, arbitration or as a last resort, going to court.

Contrary to popular belief, mediation is a simple forum in which both sides can express their grievences in a safe environment in hopes of coming to an agreement that works for everyone. Unlike a traditional win or loose scenario in a courtroom, mediations are most successful when each party compromises. They’ve provided great outcomes for every type of dispute including probate, divorce and child custody and even complex civil litigation.

Provence Messervy has multiple mediators certified in both civil and family mediation and would love the opportunity to help you resolve your dispute outside of the traditional courtroom setting.


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The New Custody Battle – Who Gets Mom & Dad?

Baby boomers beware . . . there’s a new custody battle on the rise and it has nothing to do with family court, divorce or minor children. In fact, the newest custody battle is over YOU and it’s occurring statewide in our Probate Courts.

As many of us age, we simply hope someone will be there to help care for us in our final years. Do you know who will manage your health and finances if you’re unable to do so?

  • Your spouse? A lot of us assume our spouse will take the reigns if we’re unable to make decisions for ourself but logically we know that for more than 50% of us our spouse will pre-decease us or may have their own incapacity issues when we need them the most. Naming your spouse as an agent is fine, but you always need a back-up plan.
  • Your children? If you only have one (1) child, this may be a safe assumption but for any of us with more than one child, you know that brings bickering and differing opinions. Your children may not agree (most don’t) on what’s in your best interest. Ideally, you would discuss the future with them and pick the child that’s most capable of handling the tasks due to similar beliefs, locations or skills. In reality, parents feel uncomfortable making these decisions and instead naively hope their kids will just figure it out.

These issues are compounded significantly when you’re currently married to someone who is not the parent of your children. Children and second spouses (or 3rd, 4th or 5th) are notorious for ugly court battles over who gets to make decisions regarding their loved one’s health and money! These issues need to be addressed before they get to court to protect yourself and your spouse!

So, how do we avoid anyone fighting over us in court? Less than one-third (1/3) of our population has executed a Health Care Power of Attorney or General Durable Power of Attorney to name an agent to act in our place. The reasons why vary from person to person but we’ve found for the most part it’s just wishful thinking that we will die peacefully in our sleep without facing the hurdles of aging including dementia and or Alzheimer’s Disease. Statistics; however, tell a different story. One in 3 seniors will die with Alzheimer’s disease or another dementia. One in 8 people over age 65 in the United States has Alzheimer’s disease now, and nearly 50% over age 85 are suffering. In 2014, an estimated 5.2 million people in the United States were living with Alzheimer’s disease. Sobering, isn’t it?

What’s worse is that as a whole, we’re completely unprepared and by the time we realize it (or our family does), it’s often too late because we’ve lost the ability to legally execute these documents. For more information on obtaining these documents, please contact our office for a completely free (no obligation or sales pitch) consultation. And if you’re reading this because you already have a parent in this situation, please make sure to read our other posts on Guardians and Conservators to better understand the Court’s role. Still have questions? Post them here or call/text our office at 843-871-9500. We’d love to hear from you.


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GUARDIANSHIP 101: What You Need to Know Now

Has a loved one recently been diagnosed with dementia or Alzheimer’s disease? Here’s what you need to know now:

STEP ONE: If you’re concerned as to whether or not the individual in question is capable of making rational, clear-headed decisions about their health care, daily living decisions or placement decisions, you first need to determine if they’ve executed a Health Care POA (Power of Attorney). This document allows an individual to decide for his or her self who can serve as their agent in handling their medical related issues if and when they are unable to do so on their own. This document should not be confused with a General Power of Attorney which addresses banking and other transactional business (and is discussed in other posts on this blog). If your loved one has not executed a Health Care POA, proceed to STEP TWO. If they have, please congratulate them on being prepared as they’ve just saved themselves (and you) a major hassle. Only proceed to STEP TWO if the person they nominated is unable or unwilling to serve or you have reason to believe they are taking advantage of their powers.

STEP TWO: Before approaching the Probate Court or your attorney to begin the Guardianship process, it’s first wise to consult with the loved ones medical provider and personal attorney to determine whether or not it’s too late to have them execute a Health Care POA. Remember, a diagnosis doesn’t mean the person is already fully incapacitated and these professionals can help determine if costly court intervention can be avoided by having a capacity examination and simultaneously executing documents whereby the loved one makes their own choice as to who should make their decisions in the future. This can also prove useful if the loved one needs to revoke a previously executed document because the person they named (their agent) is no longer acting in their best interest.

STEP THREE: Often times referred to as and confused with a “conservatorship,” guardianship is needed when a someone who is incapacitated due to age or disability has not named a Health Care Power of Attorney to address their health care needs. If your loved one didn’t take this step or is no longer able to do so, you must petition the court for guardianship. This process often takes several months and requires that two (2) examiners find the person is no longer able to make their own decisions. Following that ruling, the court will then transfer duties such as daily medical care, living arrangements, and medical decision-making to the petitioner.  This process can be timely and in some cases costly, especially if family members disagree as to whether or not a guardianship is necessary or disagree as to who should be making such decisions.

Here are a few common questions we are asked about the process:

What is a fiduciary and how is that different from a court-appointed guardian? A guardian is someone who has court-ordered authority to handle an incapacitated individual’s affairs. They have what is called a “fiduciary duty” to act in the best interest of the person in which they have been appointed to serve; therefore they are a fiduciary and an agent, just as someone named in a Health Care Power of Attorney.

Can anyone be appointed as a guardian? The short answer is no. In South Carolina, the importance of this role is not taken lightly and the court is charged with reviewing each case to make sure that the person appointed as a guardian is both willing and able to serve in the best interest of ward. If two people are seeking this responsibility, the court must then decide which, if either, is better suited to play such a role. The ward’s preferences and any legal documentation created prior to the individual’s incapacitation (i.e. a power of attorney or advance directive) could impact the final decision.

What are the duties of a guardian? The responsibilities of a guardian differ as they are often based on the extent of the ward’s incapacity, with the goal of promoting maximum independence. The following is a list of possible duties of a guardian:

  • Determining living arrangements (i.e. location);
  • Supervising the residence;
  • Giving consent for any medical procedures and/or treatments;
  • Securing and overseeing administration of medications;
  • Releasing medical information;
  • Hiring or firing health care providers;
  • Making end-of-life decisions;
  • Making annual reports to the court about the status of the guardianship.

To the extent possible, the guardian should seek feedback from the ward when making these decisions.

Does a guardian get paid? All court-appointed guardians are entitled to reasonable compensations for the services they provide. In most cases, when a spouse, family member or friend is appointed, they don’t charge the ward, however when a private or public guardian is appointed, these individuals are paid directly from the ward’s estate, if the funds are available. Typically, any compensation must be approved by the court and the guardian must keep thorough records of all of their services, time spent handling those tasks, and any out-of-pocket costs incurred as a result. It’s always wise to discuss compensation with your attorney and the court BEFORE accepting these responsibilities.

If you need further information related to guardianships, please refer to our blog or contact our office to set up an office or phone consultation. We have a dedicated team of attorneys who work regularly in this area and can help guide you through this difficult process.




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What is a Conservator?

A Conservator is a court appointed person who handles the affairs of someone who is unable to do so on their own. In the Probate Court, a Conservator can be appointed for a minor or an adult. Let’s look at a few examples of why someone might need a Conservator:

  1. A minor inherits a large sum of money from an inheritance. If the funds are more than $10,000, the Court will require a Conservator be appointed to manage those funds on behalf of the child.
  2. An elderly adult become incapacitated due to dementia or Alzheimer’s Disease and needs someone to ensure their bills are paid, seek any benefits they may be entitled to and otherwise manage their financial affairs.
  3. A perfectly healthy twenty (20) year old is in a severe accident which has left him unconcious and perhaps permanently brain damaged. The Court will appoint someone to manage his financial affairs and perhaps even bring a lawsuit on his behalf.

Before going further, if you haven’t read our post on Guardians, you might read that first as the two are often confused. While a Guardian manages health care decisions, a Conservator handles financial matters such as managing and protecting assets,  paying all legitimate bills and working with the Guardian to pay for the care of the ward.  A Conservatorship is established by someone (usually a family member or interested party) filing a Summons & Petition in the Probate Court to be named Conservator. The Court schedules a hearing to determine whether the person over whom the Conservatorship is sought is legally incapacitated. Medical evidence of incapacity is required and the court will provide a guardian ad litem to represent the interest of the alleged incapacitated party. If the judge decides that the person is legally incapacitated and in need of protection, the Court may appoint a Guardian (personal decision making) or Conservator (financial decision making) or both. The Court then supervises the Conservator and/or Guardian. The Conservator also reports periodically to the court about income and expenses and is often required to create a monthly budget for their ward.

Sometimes, this process can be avoided if the person has executed a General Durable Power of Attorney that names someone who can manage their affairs. Unfortunately, less than 1/3 of our population has taken the time to plan ahead and have this document in place. That being said, situations do arise where court involvement is necessary even when someone has a Power of Attorney in place. The process can also be used to remove someone who is serving as a Power of Attorney but who isn’t acting in the best interest of someone who is incapacitated.

Just like a Guardian, a Conservator is a type of fiduciary. A fiduciary is someone to whom property or power is entrusted for the benefit of another. For example, a Trustee is a fiduciary for the beneficiaries of the trust. A Personal Representative is the fiduciary for the beneficiaries of an estate. A Conservator or Guardian is a fiduciary for their ward. Being a fiduciary comes with both responsibilities and liabilities so it’s very important to understand your obligations before agreeing to become a fiduciary. If you are considering becoming a Conservator, please search our website and this blog for more information on your responsibilities and how we can help.

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What is a Court Appointed Guardian?

When people hear the term guardian, they often think of guardianship over a minor. As parents, we are the natural guardians of our own children. However, once that child turns eighteen (18), they no longer have a legal guardian. So, what happens when an adult needs a guardian?

First, why would an adult need a guardian? Unfortunately, this need arises more often than most people realize. The most common examples are a disabled child who can’t care for themselves but has turned 18, an adult is in an accident that causes them to temporarily or permanently be unable to care for themselves or make appropriate decisions, or an older adult is suffering from dementia or Alzheimer’s Disease and can no longer handle their affairs. All of these situations require the appointment of a Court Appointed Guardian.

A Guardianship is defined as court authority to make decisions for another person (often called a “ward”). A Guardian makes decisions such as where the person will live and makes arrangements for his/her care, and handles health care decisions including end-of-life issues.

To establish a Guardianship, someone (usually a family member or interested party) petitions the Probate Court and asks to be appointed. This requires a Summons and Petition filed by the interested party through his or her legal counsel. The Court schedules a hearing to determine whether the person is legally incapacitated and to what extent the Guardian needs to make decisions on their behalf. Medical evidence of incapacity is required and the court will provide a guardian ad litem to represent the interest of the alleged incapacitated party. If the judge decides that the person is legally incapacitated and in need of protection, the Court will appoint a Guardian (personal decision making). They may also appoint a Conservator (financial decision maker) at the same time. The Court then supervises the Guardian who must make yearly reports to the Probate Court regarding the condition of the incapacitated person.

This process can often be avoided if the person has a properly drafted and executed Health Care Power of Attorney in place. If you’re reading this blog, it’s a good time to make sure YOU have that document in place should you become the adult in need of help. Unfortunately, less than 1/3 of the population prepares this document which often makes court involvement necessary. At times, it’s also necessary to use this process to remove someone who is serving as a Power of Attorney but who isn’t acting in the best interest of someone who is incapacitated.

Please search our site for other blog posts related to Guardians, Conservators and Fiduciaries for more details on Court Appointed Guardians and call or text us at 843-871-9500 if you need a consult.

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Tax Advice for our Clients Age 50+

The decorations are down and most of the resolutions have been forgotten. What next? Tax time! Here is some very worthwhile information for our clients age 50+ from our friends at Jarrard, Nowell And Russell:

Everyone wants to save money on their taxes, and older Americans are no exception. If you’re age 50 or older, here are seven tax tips that could help you do just that.

1. Standard Deduction for Seniors. If you and/or your spouse are 65 years old or older and you do not itemize your deductions, you can take advantage of a higher standard deduction amount. There is an additional increase in the standard deduction if either you or your spouse is blind.

2. Credit for the Elderly or Disabled. If you and/or your spouse are either 65 years or older–or under age 65 years old and are permanently and totally disabled–you may be able to take the Credit for Elderly or Disabled. The Credit is based on your age, filing status, and income and you must file using Form 1040 or Form 1040A to receive the Credit for the Elderly or Disabled. You cannot get the Credit for the Elderly or Disabled if you file using Form 1040EZ.

You may only take the credit if you meet the following requirements:

In 2016 your income on Form 1040 line 38 must be less than $17,500 ($20,000 if married filing jointly and only one spouse qualifies), $25,000 (married filing jointly and both qualify), or $12,500 (married filing separately and lived apart from your spouse for the entire year).


The non-taxable part of your Social Security or other nontaxable pensions, annuities or disability income is less than $5,000 (single, head of household, or qualifying widow/er with dependent child); $5,000 (married filing jointly and only one spouse qualifies); $7,500 (married filing jointly and both qualify); or $3,750 (married filing separately and lived apart from your spouse the entire year).

3. Medical and Dental Expenses Deduction. Starting in 2013, the amount of allowable medical expenses taxpayers must exceed before claiming medical expense deductions is 10 percent of adjusted gross income (AGI).

However, for tax years 2013 to 2016, the AGI threshold is still 7.5 percent of your AGI if you or your spouse is age 65 or older. You can only claim your medical and dental expenses if you itemize deductions on your federal tax return. You can’t claim these expenses if you take the standard deduction. You can include only the expenses you paid in 2016. If you paid by check, the day you mailed or delivered the check is usually considered the date of payment.

4. Retirement account limits increase. Once you reach age 50, you are eligible to contribute (and defer paying tax on) up to $24,000 in 2017 (same as 2016). The amount includes the additional $6,000 “catch up” contribution for employees aged 50 and over who participate in 401(k), 403(b), most 457 plans, and the federal government’s Thrift Savings Plan.

5. Early Withdrawal penalty eliminated. If you withdraw money from an IRA account before age 59 1/2 you generally must pay a 10 percent penalty (there are exceptions–call for details); however, once you reach age 59 1/2, there is no longer a penalty for early withdrawal. Furthermore, if you leave or are terminated from your job at age 55 or older (age 50 for public safety employees), you may withdraw money from a 401(k) without penalty–but you still have to pay tax on the additional income. To complicate matters, money withdrawn from an IRA is not exempt from the penalty.

6. Social Security Benefits. Americans can sign up for social security benefits as early as age 62–or wait to receive full benefits at age 66 or 67 (depending on your full retirement age). For some older Americans however, social security benefits may be taxable. How much of your income is taxed depends on the amount of your benefits plus any other income you receive. Generally, the more income you have coming in, the more likely it is that a portion of your social security benefits will be taxed. Therefore, when preparing your return, it is advisable to be especially careful when calculating the taxable amount of your Social Security.

7. Higher Income Tax Filing Threshold. Taxpayers who are 65 and older are allowed an income of $1,550 more ($1,250 married filing jointly) in 2016 before they need to file an income tax return. In other words, older taxpayers age 65 and older with income of $11,850 ($23,100 married filing jointly) or less may not need to file a tax return.

Don’t hesitate to call the office (Jarrard, Nowell and Russell at 843.723.2768) if you have any questions about these and other tax deductions and credits available for older Americans.

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A Resolution Worth Making: Protect Your Assets in 2017

As 2016 draws to a close, we find ourselves pondering what we should do differently in 2017. Live a healthier lifestyle? Lose weight? Spend less? Live life to the fullest? The truth is that less than 8% of us keep these resolutions because they require too much will power! What if you could instead resolve to give yourself and your family the gift of peace of mind by protecting your assets?

A clear and intelligent estate plan will ensure you and your heirs get the maximum benefit from your hard earned legacy. Equally important, it will also protect you should you become incapacitated and unable to make decisions for yourself. Make an appointment now, and put these items at the top of your “to do” list for 2017:

Last Will – If you don’t have a will, get one. People often assume their assets will go straight to their spouse, but that isn’t the case in South Carolina. It’s no surprise that this very important family document causes many to turn a blind eye, which can be a very costly mistake, impacting the ones you love the most. Similarly, if you have a will and it hasn’t been updated in more than five years, I urge you to carefully review it to see if it needs revisions. Has there been a birth in the family, a divorce, death or relocation? All of these warrant updates.

Plan for Incapacity – Advancements in medical care are helping us live longer; however, as a result many more of us will suffer from diminished mental capacity. Having a power of attorney and health care agent in place will help your family take care of you when you’re unable to take care of yourself. Don’t make the tragic error of assuming your spouse will be available to handle making decisions or handling your financial affairs for you. More often than not, we see a couple’s health decline together or spouses involved in a simultaneous accident leaving the family unprepared to make these decisions.

Review Titles – There are a myriad of options for titling your real property (homes and other land) as well as certain personal property (cars, boats and recreational vehicles) to protect them from creditors at your death. However, each option has its pros and cons and should be discussed in detail with your attorney. For example, titling a vehicle or home jointly with rights of survivorship with your spouse is a great estate planning tool, but not recommended with children. Similarly, putting assets in a trust can be a valuable tool, however keep in mind it can increase property taxes if not handled correctly.

Confirming Beneficiaries – Bank accounts, insurance policies, retirements accounts . . . they all allow naming of beneficiaries. Consider reviewing your beneficiaries on an annual basis to ensure they fit with your overall estate plan, keeping in mind possible contingencies (such as your spouse passing away before you). As the new year begins, it’s easy to do this while collecting statements for your tax returns. It’s also a great idea to compile all of these statements in a notebook with your other estate planning documents so that your personal representative can locate them quickly and not delay funds getting to your chosen beneficiary.

These are just a few of the most important considerations for resolving in 2017 to protect your assets from probate. An estate planning attorney can quickly evaluate your circumstances and make recommendations based on your unique situation. Do you have young children for whom a guardian and trust might be recommended? Assets in another state? A blended family? A consult with an attorney will put you on track to a resolution you can accomplish and feel good about . . . and it will likely cost less than that unused gym membership.


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Death & Taxes



Benjamin Franklin once said, “In this world nothing can be said to be certain, except death and taxes.”

As April 15th draws near, the law offices of Provence Messervy and the CPA firm of Jarrard, Nowell & Russell often find ourselves answering questions about death and taxes in South Carolina. Here are three (3) common questions we receive and their answers:

1. Does South Carolina have estate taxes or inheritance taxes?

First, it’s important to understand the difference in these two types of taxes. Estate tax is a tax levied on the net value of the estate before it’s distributed to the heirs. An inheritance tax is a tax imposed on the people who inherit from an estate.

Residents of South Carolina have cause to celebrate when it comes to these taxes because South Carolina does not impose either tax. That being said, there are two areas where you need to be careful. First, if you inherit from someone who lived in an estate that DOES impose inheritance tax, you may receive a bill from that state. The states that impose this tax do not do so in the same manner, so it’s wise to consult with your tax professional in advance if you expect to receive this type of inheritance.

Second, the absence of a South Carolina estate tax doesn’t mean you are exempt from the federal tax. This leads to our second common question.

2. Do I still have to pay federal estate taxes if I live in a state with no estate taxes?

Yes. Living in a state that doesn’t impose these taxes does not exempt you from paying the federal government. However, there is good news in this regard. In 2016, an estate is not taxable at the federal level unless its value exceeds $5,000,000.00. For this reason, very few estates in South Carolina are forced to deal with any tax at all. However, if you are the Personal Representative of an estate valued in excess of $5,000,000,00, you need to contact both an accountant and probate attorney for advice. Similarly, if you believe your personal net worth exceeds this amount, it’s a wise investment to make sure your estate plan minimizes these taxes where allowable.

3. If there are no inheritance taxes in South Carolina, why do I have to pay income tax on the retirement accounts I received?

While it’s true that South Carolina residents don’t pay income tax on MOST inherited assets, there are exceptions to every rule. While inherited property is not considered “ordinary income” by the IRS, one exception is certain retirement accounts that were funded with pre-tax dollars. Income tax must be paid at the time these type of funds are distributed to the beneficiaries.

In conclusion, just remember not to let taxes sneak up on you. Talk to your estate planning attorney or a qualified CPA in advance about minimizing taxes at your death and preparing for any taxes you may pay as a result of an inheritance.

*Note: Thanks to Jarrard, Nowell & Russell for co-authoring this post with us and for always making themselves available to assist our clients.*

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Assets that are not required to go through probate are commonly referred to as “non-probate assets.” This term causes significant confusion amongst our clients and readers. This term simply refers to any assets which transfer automatically at the time of death, and therefore aren’t considered an asset of the estate. Here are some common examples of assets that might be classified as non-probate:

  • Life insurance –If there is a proper beneficiary named on the life insurance policy, the proceeds of the life insurance do not pass through probate and instead go directly to the named beneficiary (or beneficiaries). This is one reason that life insurance is such a great estate planning tool. One caveat here: Always make sure your insurance beneficiary designations are accurate. If you get a divorce, your beneficiary predeceases you or you fail to name one, the default rule is that proceeds become payable to the estate of the policy holder. In that scenario, you’ve just failed to take advantage of a great opportunity to avoid taxes, probate fees and creditors.
  • Retirement Accounts – Most retirement accounts allow for the naming of a beneficiary. When you name a beneficiary (or two, or three), the beneficiaries are automatically entitled to the assets in the account at the time of death. Similar to life insurance policies, failing to name a beneficiary or not updating your beneficiary can destroy this benefit. It’s important to discuss with your investment advisor and attorney how these accounts should be considered in your estate planning.
  • Payable on Death (POD) Accounts – Bank and brokerage accounts can also have designated beneficiaries. While it’s advisable to make sure there is some cash in your estate to handle funeral bills, probate fees and other expenses, transferring the bulk of your cash using a POD account is a smart strategy.
  • Property Held Jointly with Rights of Survivorship – We have previous posts that cover this form of ownership in detail. For this discussion, just remember that your real property, vehicles, boats and other titled assets can be set up in this structure so that upon death, the interest automatically conveys to the other owners. While this is great for a spouse or to transfer assets to an only child, make sure to understand why you should be careful when using this as an estate planning tool if you’re single, remarried or have more than one child! More information on that can be found on here.
  • Trust Assets – Any asset transferred to a trust prior to death is considered a non-probate asset. The reason is simple, probate only controls assets owned by the decedent at his/her time of death. Assets in a trust are in control of the trust, not the decedent, and therefore don’t require probate.

This information is important both for Personal Representatives handling an estate and for clients doing estate planning. The rules that must be filled to keep them classified as “non-probate” also highlight the importance of checking your titles, beneficiaries and estate plan regularly to make sure everything is in place. So many events can trigger a need to update your planning including the birth of a child, divorce, death of a beneficiary, change of employment, purchase of property and more.

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Dealing with the DMV

Let’s face it, no one looks forward to dealing with the Department of Motor Vehicles. This can be even more stressful when coupled with the loss of a loved one. We frequently receive questions on transferring title to vehicles (this includes boats, RV’s, etc.) that are part of an estate. In some instances this may or may not include a mobile home. Here is some information to help you along:

In August 2011, the Department of Motor Vehicles changed its procedures. Previously a form called an Affidavit of Inheritance was required to transfer title to a vehicle. Under the current procedure, you will need the original title, along with DMV Form 400, and the appropriate fee. Other documents you need to complete this transaction will depend on (a) how the vehicle is titled and (b) the value of the estate/other assets. Determining these up front will make sure you have what you need to have before you head to the DMV.

A. HOW IS THE VEHICLE TITLED? There a three (3) options for how a vehicle can be titled:

  1. SOLE OWNERSHIP: If Decedent’s name is the only one of the title, then he/she was the sole owner of the vehicle. It does not matter who drove the vehicle or who paid taxes on the vehicle. This means that the vehicle will pass through the Estate, see (b) below to determine value of the estate.
  2. JOINT OWNERSHIP / TENANTS IN COMMON: If the deceased owned the vehicle with someone else and the names are listed using “and”, the vehicle is owned as tenants in common. The decedent’s interest (50% when 2 owners) passes through the estate according to the will or intestacy. See below (b) to further determine what documents you need to proceed.
  3. JOINT OWNERSHIP WITH RIGHTS OF SURVIVORSHIP: If the deceased owned the vehicle with someone else and the names are listed using “or”, then it is owned as joint tenants with right of survivorship. We have explained the differences between joint tenants with rights of survivorship and tenants in common in a previous post. If this is the case, all that is needed is the original title showing the “or” relationship and the DMV Form 400. You do not need to worry about the value of the estate in this scenario as the vehicle is a non-probate asset and will transfer directly to the other owner.


  1. $25,000 OR LESS: If the value of the estate is $25,000 or less, a certified copy of the Affidavit of Collection for Personal Property (a “small estate affidavit”) is needed to transfer title in addition to the Form 400. If you haven’t opened the estate the Probate Court or your attorney will assist you in determining if you qualify for a small estate.
  2. GREATER THAN $25,000: If the value of the estate is greater than $25,000 or for other reasons did not qualify for a small estate, an original Certificate of Appointment from the Probate Court less than one year old is needed in addition to the Form 400. The Personal Representative may reassign the title as directed by the Will or under the intestacy statute.

If you have specific questions regarding how to handle a vehicle or mobile home, consultation with an experienced probate attorney may be helpful. These guidelines are also important to keep in mind when acquiring a new vehicle or creating an estate plan.

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