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Stepparent vs. Children in Probate: Who Inherits What? Georgia Law Explained — Transcript

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0:00Hey guys, welcome to Probate Matters. My
0:03name is Jenny Dinker. I'm our client
0:04onboarding manager with Guardian Probate
0:06Law Group and Georgia Probate Law Group.
0:08And I'm Eric Brol. I'm the founder and
0:10CEO of Georgia Probate Law Group and
0:12Guardian Probate Law Group.
0:14>> Before we jump into our episode today,
0:16we have a little disclaimer here for you
0:17that I am not an attorney. I cannot give
0:20legal advice. Eric is an attorney. But
0:22any information you hear here today is
0:24just general information. for your
0:27specific situation, please reach out to
0:29us and we'd love to speak to you about
0:30that.
0:31>> Now, Eric, we went over will contest um
0:34in the last episode. Yeah, we went a
0:36deep into that. There was a lot to cover
0:37about that.
0:38>> Um but there's other dispute situations
0:41that are not tied directly to a will
0:43contest um when it comes to estate
0:44administration. So, there's a lot of
0:46other topics we can cover with things
0:48like that.
0:49>> So, I want to go over a little bit today
0:50about how stepparents fall into estate
0:54situations, okay? and how that works
0:56because especially when there's not a
0:59will in Georgia. Yeah.
1:01>> And let's say that um a father passes
1:04away, he has remarried, he has two kids
1:07of his own, but she has two kids that
1:09are not his kids. What happens in those
1:12type of situations?
1:13>> That's a great question. That's that's
1:16actually the scenario why our firm
1:18exists.
1:19>> U because I had that as you know, I had
1:21that situation in my family, right? My
1:23uncle passed away.
1:24>> He had two kids from prior relationship.
1:27My aunt survived him. She had kids from
1:28prior relationship.
1:30>> And then that whole estate situation was
1:33just awful.
1:35>> Um it was awful watching watching the
1:37house come up for sale, watching her
1:39pushed around in a wheelchair. Um the
1:41little price tags on everything in her
1:43home.
1:43>> Yeah.
1:44>> And so it can get messy and it can get
1:48rough. Um,
1:50>> we have to talk about why that is.
1:54And the reason is because when there is
1:56not a will,
1:59who is entitled to inherit the property?
2:01And really, we're just we're talking
2:02about property. Who's entitled to
2:04inherit is based upon state law.
2:07>> And so, um, here where you have a
2:11steparent,
2:13they're the spouse of the deceased,
2:15right? Mhm.
2:18>> And they have they have kids.
2:22The deceased also had kids. So the
2:25deceased's kids under state law, at
2:27least under Georgia law, are going to be
2:29entitled to inherit
2:31>> and their spouse step or otherwise is
2:33going to be entitled to inherit.
2:34>> Yeah.
2:35>> Now, that leaves out
2:38the children of the surviving spouse.
2:41Why? Because they're not blood
2:42relatives. they're not related to our
2:45deceased person.
2:47>> Mhm.
2:48>> The only way for them to inherit would
2:50be if there was a will that said they're
2:51supposed to receive something or if
2:53there was a formal adoption that had
2:56taken place. So if there was a formal
2:57adoption that works because then legally
3:01they are legally the children of the
3:03deceased, right? Even though they may
3:05not be bloodreated and we see that from
3:07time to time.
3:08>> Yeah. So these type of situations can
3:12absolutely be fraught with conflict.
3:15What we see in the office from an
3:17emotional standpoint is that the person
3:21who passed away, especially when these
3:23situations blow up, is often the glue
3:25that was holding everything together.
3:26>> Yeah.
3:27>> And you may think everything is great,
3:29right? Or it may be that, you know, his
3:33kids never liked stepmom and she never
3:34liked them, but they all kind of made it
3:37work
3:38>> for the sake of dad.
3:39>> Yeah.
3:40>> And then dad passes away. And now what?
3:43Right. Now we've got uh oftent times you
3:46have stepmom feeling like I was married
3:47to him, you know, I am the spouse.
3:50>> Yeah.
3:50>> I should inherit. I should get whatever
3:53whatever uh I should get. And then you
3:55have the kids saying, "Oh, you've only
3:56been with him for 10 years or five years
3:58or two years or whatever." And you know,
4:00we didn't you must have conned him into
4:03marrying you. You get all those kind of
4:05stories, right? Where each party has
4:07their own story, their own narrative
4:09going on in their head.
4:10>> And that narrative is what's driving
4:12their behavior. But at the end of the
4:13day, you've got two parties that are
4:16both after the same stuff. And
4:20um it may be purely emotional. It may be
4:22purely sentimental things they're after.
4:24Or it could be, you know, their dislike
4:26for the other party or their own
4:29personal sense of I should get this, I
4:31feel like this is right or fair,
4:33whatnot, is is driving them into
4:35conflict with the other person.
4:37>> Yeah. And what a lot of people don't
4:39know, it seems like, is that if there's
4:41not a will in Georgia and the dad passes
4:45away and you have stepmom and then the
4:47dad's children, stepmom's going to get
4:50some of that estate if there are probate
4:51assets. Is that right? I mean, there's
4:52no way to to disinherit stepmom from the
4:55estate.
4:56>> No, not without a will. Yeah.
4:57>> Not without a will. And so this Let's
4:59talk about this. Let's talk about this.
5:01If there is no will in your scenario,
5:03it's a third. A third, a third, right?
5:05the the spouse is going to get a third
5:07and you have two kids and they're going
5:08to split the two/3s equally. So, a third
5:10a third a third of all the property.
5:12>> Yeah.
5:12>> Now,
5:14what happens if the house was totally
5:18completely in dad's name, but mom, you
5:20know, stepmom lives there.
5:21>> Mhm.
5:22>> Well, I mean, it's a third a third a
5:25third.
5:26>> Yeah.
5:27>> So, now that house potentially has to be
5:29sold,
5:31>> which is what happened in your
5:32>> That's what happened in my situation.
5:34So, um, my uncle, you know, everything
5:37was set up kind of traditionally. He was
5:39a traditional guy kind of of that
5:40generation.
5:41>> Mhm.
5:42>> And the house was solely in his name.
5:44Almost everything was solely in his
5:46name.
5:46>> Mhm.
5:47>> And so when his kids, and that state's
5:50laws in this respect are similar to
5:52Georgia. It didn't happen in Georgia,
5:53but
5:54>> when his kids said, "Well, we want our
5:56our part." They were able to force
5:59everything, including the house, to an
6:00estate sale to get their part. Now I
6:03mentioned you know in the last episode
6:04we talked about this at length the
6:07family fortunately was able to come
6:10together as a group and uh buy the house
6:13back from the estate.
6:14>> One of the key parts of that is the
6:16family was able to buy it at a discount.
6:18Mhm.
6:19>> You know, if if if just for simple math,
6:22if we say the house was worth $150,000
6:26and [snorts]
6:27uh your your surviving spouse, my aunt
6:29in this case, her share was worth a
6:32third.
6:33>> Well, anybody else coming off the street
6:35would have to buy the house for 150,000.
6:38She could buy it for a h 100,000.
6:40>> Yeah.
6:41>> Because 50,000 of that was already hers.
6:43>> Hers. Yeah.
6:45And so that's how the family was able to
6:47do it by buying it at a discount with
6:49her share and they just, you know, put
6:51the money together and made it happen.
6:53>> And fortunately, you know, there was
6:55enough of them and they were able to to
6:57make that work. But that's not true for
6:59every family. And so,
7:01>> um, there are situations
7:05and it's gut-wrenching. It's
7:07heart-wrenching when you're talking to a
7:08client and
7:10>> especially a surviving spouse that's
7:12lived in this house for a long time. I
7:13mean, I'm not talking about the the
7:15wedding that happened 6 months ago or
7:16whatever. You know, you've got long
7:18relationships,
7:19>> 10 years, 15 years, 20 years where these
7:21are committed, long-term marriages.
7:24>> And um but the the assets weren't set up
7:27in the right way and now she's in a
7:29rough spot.
7:30>> Yeah. And you know, if there are other
7:33assets, if there's investment accounts
7:35or savings or you know, just kind of
7:36cash assets, cash stocks, securities,
7:39that kind of thing where maybe we can
7:40offset, you know, that can help where
7:42she can keep the house and, you know,
7:44the kids can get their part out of some
7:46of these other assets, but that's not
7:47even always the case.
7:48>> Always. Yeah.
7:49>> And so, um, and I'm not even talking
7:51about debts, right? Creditors and that
7:53kind of thing. We I'm skipping over
7:55that. I'm assuming there's no creditors
7:57in this example because that adds a
7:58whole another layer of complication on
7:59top of this.
8:00>> Mhm.
8:01>> Um
8:03so let's So that's the bad side.
8:06>> Yeah.
8:07>> Um what's the positive side? The
8:09positive side is this can get fixed if
8:13either the assets are set up in the
8:15right way or if there's a will. So I
8:18want to talk about that a little bit.
8:20>> We don't do any of that work.
8:22>> Yeah.
8:22>> We don't write wills and we don't really
8:24move around real estate. we do in the
8:25context of an estate. We'll move around
8:26real estate, but
8:28>> you know, we're not we're not out there
8:29trying to rewrite everybody's deed.
8:30That's just not our thing. But I think
8:32it is important
8:37it's important for folks to to
8:39understand some ways that they could set
8:41things up that will have a very large
8:43impact in a probate situation,
8:45particularly in a blended family.
8:48>> One of those, let's talk about deeds.
8:51Mhm.
8:52>> So, the house deed, um, if it's solely
8:55in one person's name, husband or wife,
8:57that's going to cause problems.
8:59>> Mhm.
9:00>> Unless what you want is for it to be
9:01split up between your spouse and however
9:03many kids you have, well, then there's
9:04no problem if that's what you want. But
9:05if that's not what you want,
9:07>> you know, just going and rewriting the
9:09deed to where we put both parties names
9:11on it,
9:12>> that fixes it.
9:15>> Now, there's two ways to do that.
9:16There's joint tenants with rights of
9:17survivorship, and there's tenants in
9:19common. Um, a lot of fancy legal words,
9:21but joint tenants means when one of them
9:23dies, it the the house becomes
9:25automatically the property of the other
9:27one.
9:28>> Tenants in common means that when one of
9:30them dies, u, the one half owned by the
9:34surviving spouse is theirs completely
9:36and the one half owned by the deceased
9:38spouse does go into the estate process.
9:40That can still cause the the forced sale
9:42of a house. I've seen it. We've been a
9:43part of it. Mhm.
9:44>> We have unfortunately been on the uh
9:47forcing end of that and the receiving
9:49end of that.
9:49>> Yeah.
9:50>> Um and so, you know, if the relationship
9:53is good and we're talking about a
9:55long-term committed uh marriage
9:57relationship, joint joint tenants is
9:59really a very very useful tool um for
10:02that.
10:03>> The other way you can deal with it is by
10:05having a will. And there's just a ton of
10:07confusion out there and a lot of just a
10:10lot of uh confusing information about
10:12what a will does and what a will doesn't
10:13do.
10:14>> Yeah.
10:14>> I've heard things like, well, if you
10:16have a will, you don't have to go
10:17through probate. I've also heard things
10:18like, well, a will doesn't really do
10:20anything. There's no reason to have it.
10:23>> A will does in the simplest possible
10:25terms I can make it, and I'm a probate
10:27guy. I'm not an estate planner.
10:30>> A will is going to do two things for
10:31you. It's going to let you decide who
10:34gets your things when you pass away
10:36instead of state law. And it's going to
10:38let you decide who is going to be
10:40responsible for managing the estate
10:42process.
10:44>> There are a bunch more things I can go
10:45into that a will can do.
10:49>> But those two things right there, every
10:51will, it's going to get that done for
10:53you. And in our scenario with step kids
10:57or or stepparents or whatnot, a will
11:00also fixes our problem
11:02>> because if there's a will, then um we
11:07could say I leave everything to my
11:09spouse.
11:10>> And if my spouse is no longer here, I
11:13leave it to my kids. Or maybe I leave it
11:16to all of the kids. You know, my kids
11:18and my spouse's kids, right? to me are
11:21steps, but to my spouse, they're her
11:23kids and mine are the step kids, right?
11:25And maybe we agree as a couple to do
11:27that. We're each going to make wills
11:29>> that that mirror each other in that
11:31respect. Um, but a will also solves it
11:34because then, you know, if I pass away,
11:36even if the house is solely in my name,
11:39>> my will says it's going to go to my
11:41spouse. So now, you know, in terms of my
11:45kids coming and trying to mess something
11:47up for my spouse cuz they don't like her
11:50that much, you know, their stepmom, it
11:52it kind of cuts out some of that.
11:53>> That makes sense.
11:54>> Um, and then with a will, you know, it
11:56doesn't even have to be that simple. It
11:57can be more complicated. I could say,
11:58you know what, I'm going to give each of
12:00my kids $10,000 and I'm going to give
12:03the rest to my spouse, right? I'm just
12:05picking numbers out of the air. It could
12:06be anything you want it to be, but it
12:08allows that to happen. And I think I've
12:12seen it just too many times that in a
12:15blended family situation, will's super
12:17important. It it just
12:19>> it it it settles things.
12:21>> Now,
12:22>> uh and this is this is a question for
12:24the estate planners and figuring this
12:26out. But you know, if I die first,
12:28>> even if we have those mirrored wills,
12:30this is everything to my spouse and then
12:31everything to the four of the kids. I
12:33mean, if I die first, my spouse can
12:34change her will even after.
12:35>> I was I was about to ask you that. Yeah.
12:37>> Yeah. So, you've got those kind of
12:38situations. There's other vehicles like
12:40trusts and whatnot that can attempt to
12:42deal with that. Um, I don't personally
12:44like trusts very much.
12:46>> Um, I I we find in the office they cause
12:48more harm than good generally because
12:50they're just not funded [snorts]
12:51properly. The the steps are not taken.
12:53You got a nice document somebody paid a
12:55bunch of money for, but then it doesn't
12:56own anything and you got problems.
12:58>> Yeah.
12:59>> U, but a well done trust that's properly
13:01funded in this situation, it could help
13:03solve that.
13:04>> Okay. Yeah. Yeah, that's what I was
13:05going to ask you about the will language
13:06because we get this a lot where maybe
13:10the father did have a will. Let's say in
13:12that same that same situation we just
13:14talked about. The father did have the
13:15will and said everything is left to my
13:17spouse and then if my spouse is
13:19deceased, it will go to my children. And
13:21the children have had conversations and
13:23the dad said, "Hey, don't worry. When
13:25she passes, the will says everything
13:28goes to you."
13:29>> But it's not exactly like that, right?
13:32It would actually go to the spouse in
13:34most if that was the language very
13:35straightforward. It would just go to the
13:36spouse then that's where it stops
13:39because the spouse is alive when he
13:41passes.
13:42>> Yeah. Yeah. You're exactly right in
13:43that. And so now what happens when the
13:45spouse passes away? Well, we go to the
13:46spouse's will.
13:47>> If the spouse's will is the same will
13:49that was created with the husband that
13:51had died. Great.
13:52>> But if she changes her will, let's say
13:54she gets remarried,
13:56>> right? Changes her will and now cuts out
13:58his kids.
14:00>> There's not a lot we can do about that.
14:01And we've had it happen where you've got
14:04um like family heirloom type property or
14:06maybe a piece of real estate that's been
14:09in the family for a long time and and it
14:12passes in that way. It's it's in his
14:14side of the family. He dies. It winds up
14:16over here with her.
14:17>> It's supposed to go to the kids, but
14:19then she changes her will and the kids
14:20are really mad about this. And now that
14:23piece of property is like going to go
14:25over to her side of the family or go to
14:27her new spouse or something. And it's at
14:29that point there's not a ton you can do
14:31about it. Which is why I think the
14:32planning is so important.
14:34>> Mhm.
14:35>> So how could we have fixed this? The
14:36simplest way I can think of is if we had
14:40uh when in his will, if he owned this
14:42property, if we had a trust inside of
14:44the will, what we call a testimeamentary
14:46trust.
14:47>> Testament and and it and the will says I
14:49leave this property to the trustee of my
14:53testimentary trust.
14:54>> Okay.
14:55>> Now the trust owns the property.
14:58We can have in the trust document which
15:00is in the will something that says my
15:02wife at the time of my death can live
15:04there for as long as she wants to live
15:05there and then when she passes away it
15:07goes to my kids because we're going to
15:09keep it in the family. We never in that
15:12situation ever actually transferred it
15:14to her.
15:15>> We put it in a trust and the trust had
15:17instructions on what to do. The trustee
15:19was supposed to carry those out, but we
15:21gave her the use of it for the rest of
15:23her life and then we moved it back over
15:24to the kids to keep it in the family.
15:26That's a simple example of how we could
15:29solve that situation with stepparents.
15:32>> I like that a lot because I think that
15:34not a lot of people know that that they
15:35could set that up that way with a
15:37testimentary trust inside of the will
15:39and they just think that the standard
15:40will format is going to be when I say
15:42standard I just mean that says I
15:43bequeath this to my my spouse and then
15:46my kids after that. They think that's
15:48going to cover all basis. But it sounds
15:49like something like that would cover it
15:51a lot more in the long run.
15:53>> It does. And and the advantage of a
15:54testimeamentary trust is it's not a
15:56living trust. Living trusts are the ones
15:57I we tend to have problems with because
16:00you have a living trust that's already
16:01supposed to own this property.
16:03>> Okay.
16:04>> Um and that just people forget to put
16:07property in it. People, you know, when
16:09things change, they don't update it. And
16:11so, but if it's a testimentary trust
16:12inside of a will, it doesn't even come
16:14into existence until the will is
16:15probated.
16:16>> Yeah.
16:16>> So, from an administrative standpoint,
16:18it's much easier during the person's
16:20life because they don't have to do
16:21anything differently.
16:22>> Yeah. Exactly. I like that. Well, and
16:25you were saying that going back to the
16:27no-will situation. So, I know we talked
16:28about will for a minute, but I want to
16:29go back to the no will situation. So,
16:31>> in the situation where we talked about
16:33no will, spouse passes away, you have,
16:36let's say, stepmom and then
16:37>> his two children that are not her
16:39children. You said a third, a third, a
16:41third.
16:41>> Yeah.
16:42>> But there is something in Georgia called
16:44year support that can kind of mess with
16:48that a little bit. So, can you tell our
16:52listeners what your support is and why
16:55it is so important in a situation like
16:57that?
16:58>> Yeah, absolutely. I love this topic. Um,
17:01you know, when I talk about my story and
17:04my aunt,
17:06>> um, and and and you know how
17:12there were things that could have been
17:14done to make her situation different.
17:16This is one of those things.
17:19We call it spousal support. Every state
17:21has their version of spousal support. In
17:23Georgia, we call ours support. Um
17:26Tennessee calls theirs calls theirs
17:28something else.
17:30And so
17:32in Georgia, the way your support works
17:35is it's available to a surviving spouse
17:38or minor kids of the deceased and it
17:40allows them to take a portion of the
17:43estate or be awarded a portion of the
17:45estate off the top. And the neat thing
17:48about off the top, we've talked about
17:50creditors before, right? So when you
17:52have an estate and you have estate
17:53property, well, first all your creditors
17:57in all their various categories have to
17:59get paid. And then after they're all
18:01paid, then the family gets money.
18:03Whether that's through a will or in a
18:05no-will situation, they're at the
18:06bottom. What your support does is it
18:08takes our surviving spouse or minor kids
18:10and it and it and it allows them to get
18:12property off the top before even
18:16creditors get paid.
18:18>> And so it's super powerful. It's a super
18:21powerful version of spousal support that
18:24we have.
18:25>> Okay. And so in this situation where we
18:29have a surviving spouse and we have two
18:32children, assuming those children are
18:34adults, if they're minors, this doesn't
18:35work the same way, but assuming they're
18:37adults, then that allows us to file this
18:40year's support petition on behalf of the
18:43surviving spouse and gives that
18:44surviving spouse a lot of advantages in
18:47the case
18:48>> because now our surviving spouse is
18:50going to get whatever they get out of
18:53your support, which we'll talk about in
18:55more detail.
18:57Then creditors get paid.
19:00>> Then the remainder of the estate is
19:02split a third, a third, a third. Our
19:04surviving st spouse still gets her
19:06one-third p one-third portion of what's
19:09left at the end. Mhm.
19:11>> So that, as you can imagine, can really
19:14change the dynamic and change the
19:16negotiations when you're when you're
19:18talking with um stepchildren who are
19:22coming in to try to take whatever they
19:24can take.
19:25>> So in my aunt's situation,
19:28this would have been a gamecher.
19:30>> Yeah.
19:31>> Instead of the kids coming in and
19:32saying, "We'd like to get ours. we want,
19:35you know, yeah, sell the house, you
19:36know, put stickers on everything. Well,
19:38she would have been able to say or
19:40attorney would have been able to say,
19:41"No, wait a second. I'm entitled to
19:43this." And so, I'm filing this. I'm
19:45going to get this amount off the top of
19:47value of the property, and then we're
19:49going to split what's left. It changes
19:51everything.
19:51>> And they may have even looked at that
19:52situation and said, "She's the surviving
19:55spouse. She needs a place to live. You
19:57have no right to it at all." They may
19:58have made that decision at that point.
20:01>> Exactly. I can tell you in Georgia, so
20:02the way ours works is really neat.
20:05You get whatever you ask for unless
20:08someone objects.
20:09>> So you can imagine the games we play
20:11with creditors with that kind of
20:12language in the statute because
20:13creditors do not always object. So
20:16there's been plenty of times where our
20:18team has successfully taken the entire
20:20estate through your support and we've
20:23been able to avoid paying creditor
20:25claims. That's fantastic. Huge win for
20:27the family. way more than pays for our
20:30fees,
20:30>> right? Um,
20:33>> another way it works is let's say
20:36someone objects. So, we file it. Now,
20:38the step kids, they always object.
20:40>> Yeah.
20:41>> Right. They're not too happy about it.
20:43Mhm.
20:45>> Then the statute goes on and it says,
20:46"But if someone objects, there's a
20:49formula."
20:51And what we're looking for is the
20:54surviving spouse is entitled to one year
20:57of the standard of living that was lost
21:00as a result of the death. That's where
21:02the name comes from. The name year's
21:04support is because the measurement we're
21:06looking at is one year of the standard
21:08of living. Now, what does that mean?
21:10That's a lot of words,
21:12>> but what does it actually mean?
21:16>> Well, it says we look at other sources
21:19of income and assets the surviving
21:21spouse has and we look at what was lost.
21:24So,
21:25>> in a situation where you have a
21:27surviving spouse that was totally
21:30dependent upon the spouse that passed
21:33away financially. Yeah, that's what I
21:35mean. Um, let's say he was the one
21:39working, she was not working.
21:42>> Well, we would look at the income
21:44disparity and we would look at uh, well,
21:47how much was he bringing to the
21:49household?
21:50>> And now, where does this household stand
21:54>> and we can do the math. If he was making
21:56a h 100,000 a year and she was making
21:58zero, we've lost a h 100,000 a year.
22:01>> Yeah. So, our starting point is going to
22:03be, okay, well, she should get about
22:05$100,000 worth of property off the top.
22:08>> Now, the kids can come in and argue,
22:09yeah, but
22:12>> uh he had an employer life insurance
22:14policy for $20,000, so we need to take
22:16that off. Now, we're down to 80,000,
22:18>> right? Oh, well, look, she has her own
22:21401k, IRA, whatever from when she was
22:24working. There's savings here. Now,
22:26we're going back and forth and we're
22:28arguing about this formula. The formula
22:30is not clear-cut. I wish it was
22:31something we could just plug in Excel
22:32and that would give us a number. It's
22:34not.
22:34>> Yeah.
22:35>> To your point,
22:38it's also really hard, I think,
22:42>> to just tell a surviving spouse, "Nope,
22:44we're going to sell your house."
22:46Especially when there's a support
22:47petition.
22:47>> Yeah.
22:48>> I think you've got that empathy
22:51for a surviving spouse that the courts
22:53are able to able to recognize.
22:56>> Yeah. and the hardship that's being
22:58placed on that surviving spouse through
23:00the year support process. Whereas the
23:03typical estate process that's a third, a
23:05third, a third, there's none of that. It
23:08is what it is. It is a formula. We're
23:10splitting it up.
23:11>> The year support process is more
23:14flexible.
23:16>> It's it's it's more flexible and
23:18amanable to those kind of arguments.
23:21Now, from a procedural standpoint, you
23:22do both, right? You have to run the
23:24estate process. you also run the year
23:26support process and typically you run
23:27them simultaneously.
23:29>> Um and if there's an objection in your
23:30support, you know, just like we talked
23:32about before,
23:34um you can
23:37uh you go into discovery and you go into
23:39the civil dispute type process.
23:41>> Yeah. And a big part of this or
23:43something that's really important, I
23:44think, for everyone to know is the
23:46amount of time they have to file that
23:47because it's only two years. It is only
23:49two
23:49>> from the time of the passing, right?
23:51>> Yeah. Yeah. And and that's I'm glad you
23:54brought that up. That's super important.
23:55It is. And it functions like a statute
23:57of limitations. And what that means is
23:59there's nothing anybody can do. No
24:02court, no judge, nothing. If you cross
24:05two years from the date of death, the
24:06right to your support is extinguished
24:08under the law. So there's you're you're
24:10done. There's nothing you can do.
24:11>> Yeah. So that's an important deadline.
24:13>> It's very important. There's a couple of
24:14other ones I think that are important.
24:15Um, for example, the spouse cannot
24:17remarry,
24:19>> right? If the spouse gets remarried Oh,
24:21wow. then their their right to your
24:23support is also extinguished.
24:24>> Okay.
24:25>> And so that one's interesting because um
24:27a lot of statute of limitations type
24:29stuff is filing dependent. I'm getting
24:31very technical, but
24:33>> meaning that the years support doesn't
24:34have to be finished in two years,
24:36>> but you have to get it filed within two
24:38years. So if I go one year and 364 days
24:42and then I file my petition with the
24:44clerk, I'm good. I got it in on time. Y
24:48>> however, the marriage thing, you could
24:49be in the middle of the year support
24:51petition, you know, arguing things out,
24:53getting ready to go to a hearing, but
24:55it's not been completed.
24:56>> Yeah.
24:56>> If the spouse gets remarried, the other
24:59side can get the whole thing dismissed.
25:00>> Wow.
25:01>> Yeah. Because it's seen as,
25:03>> well, you don't need
25:04>> Now you have that income.
25:05>> Yeah. You don't need the support
25:06anymore, right? You've obviously moved
25:07on.
25:08>> Yeah. Yeah. [laughter] Exactly.
25:09>> Right. Um and so, but yeah, that that
25:13two-year statute of limitation super
25:14important.
25:15>> Okay. And you had touched on earlier,
25:17well, if there were minor children
25:18involved in this, then that changes it.
25:20Why does that change it versus adult
25:21children?
25:22>> Oo, that's great. That's great. So,
25:23remember my uh the initial requirement I
25:25gave?
25:26>> It's available to surviving spouses and
25:28minor kids. Once a child turns 18,
25:30they're no longer uh eligible for it.
25:34But if they're under 18, they are
25:37equally eligible with the spouse.
25:39>> So, what that means is you can't leave
25:41them out. The kids can't leave the
25:43spouse out and the spouse can't leave
25:44the kids out.
25:45>> And so, and this, you know, when you get
25:46into a step situation, this can be a
25:49little bit challenging.
25:49>> Yeah.
25:50>> Um, so both parties have a right to
25:53petition. And now we're back to our
25:55split thing.
25:56>> Yeah.
25:56>> Um, is it going to be an absolute even
25:58split down the middle
26:00>> probablyish? I mean, again, remember
26:03your support has more flexibility. The
26:05court has more flexibility to to look at
26:07the facts and circumstances in the
26:09situation. And so, but the kids will
26:11inherit. they will get something in your
26:12support. So when I talked about how your
26:14support goes to the top and we take it
26:16off of the top,
26:17>> yeah,
26:17>> those kids are now included. So our
26:20strategy of taking more off the top for
26:22a surviving spouse doesn't work as well
26:25with minor kids.
26:27>> If there's a minor child and a child
26:30that's over 18, it really disadvantages
26:33that child over 18 because the spouse
26:36and the minor child are going to
26:37participate in your support. Then we pay
26:39creditors and then there's a 1/3 one-3
26:42split at the bottom. Right. So that
26:46minor child and the spouse are going to
26:47wind up with considerably more probably
26:49than the than the child that's over.
26:52Yeah.
26:52>> Yeah.
26:53>> So um and talking about deadlines
26:55because that was a great question you
26:56asked with the minor children. Um once
26:59they turn 18 they're ineligible.
27:02>> Um now what's interesting with your
27:04support with them is uh you just got to
27:06get it filed before they turn 18. Got
27:08it.
27:08>> Right. So, if they're 18 after it's
27:10filed, then they remain eligible unless
27:12it's dismissed. Um, but it's it's a
27:14filing deadline for them.
27:16>> So, essentially with minor children,
27:17there are two potential deadlines
27:19because they have they have to be under
27:2218. So, they can't turn 18 years old and
27:24it has to be within the two years from
27:26the time that the person passed away. It
27:28can't be after that. So, they can't wait
27:30>> three years and still not be 18. It has
27:32to basically both of those things have
27:34to be true.
27:35>> Yes. That's right. So easy example is
27:38let's say the child is um is 17 years
27:41old when their parent passes away.
27:43>> We've got until their 18th birthday.
27:45>> Got it?
27:46>> If their 18th birthday is a month away,
27:48we have a month.
27:49>> If their 18th birthday is a year away,
27:51we've got a year. It's the it's
27:53whichever happens first, either two
27:55years from date of death or the minor
27:56turns 18.
27:57>> Got it.
27:57>> If the minor is 10, then we have two
28:00years. You know, the normal statute of
28:02limitations.
28:03>> Okay. So really to summarize your
28:05support for our listeners is from what
28:07you're saying, it's a creditor's claim
28:09essentially for a surviving spouse or a
28:12minor child that can be filed against
28:14the estate to request for more than what
28:17they're entitled to from the estate. Is
28:19that correct or would that be incorrect?
28:22>> I think so. I mean, it's yes, it's a
28:24creditor's claim and it's it's it's it's
28:27valued based upon what was lost, the
28:30standard of living loss as a result of
28:31the death. Um, and yeah, I I guess I can
28:34go with that. They they will wind up
28:36probably getting more than they
28:37otherwise would. Either because we get
28:39more from creditors or because they're
28:41able to get more than they would under a
28:44typical split without a will.
28:47>> Which makes sense because it seems like
28:50what the courts are looking at is saying
28:51that either if it's a minor child or a
28:54surviving spouse, you no longer have
28:56that uh financial resource anymore to
29:00help with your livelihood. So because of
29:02that, we're going to give you X amount
29:04to assist with that um in the future
29:06basically.
29:07>> Yeah. And if you look at the history of
29:08it, right, this law is I think it's over
29:11a hundred years old at this point.
29:13>> So if we go back in time,
29:15>> Yeah.
29:16>> you had a you had society at that time
29:18was mostly the male was the working
29:20bread winner of the household and the
29:22female uh stayed home and raised the
29:25kids.
29:25>> Yeah. So if we look at it through that
29:27lens,
29:29>> the reason and how it works starts to
29:32make more sense.
29:33>> Yeah.
29:33>> Now it's available to both sexes, right,
29:35at this point in time. At one point, I
29:37believe it was only available to wives.
29:40>> Um Oh, wow.
29:41>> Yeah. But it's available to to both
29:42genders. It doesn't really matter. But
29:44just looking at the history of how it
29:46came to be, it makes sense about this.
29:47Okay. You know, oh well, the the the man
29:51of the house passed away. The bread
29:52winner passed away. We don't want to
29:54throw the wife and kids out on the
29:56street. We're going to make sure they
29:58get a year, right, to figure everything
30:02out.
30:02>> We're not going to let the creditors
30:04take everything. We're at least going to
30:06give them a year's worth of the income
30:08they're used to. That gives them time to
30:10figure things out, get everything
30:12situated. That was kind of the
30:14historical context for how this came to
30:17be.
30:17>> Got it. That makes sense. And I have
30:19personally seen in our office how
30:22especially either for a surviving
30:24spouse, a male or a female, doesn't
30:26matter, how the benefits of your support
30:28and what our team does for the creditors
30:31has helped them out so much where I've
30:33seen situations with $50,000 in medical
30:36bills, you know, $60,000 in credit card
30:38bills and they were all pretty much
30:40eliminated or in many situations they
30:42were. So, it's really it's a huge
30:44benefit for surviving spouses to know
30:46about that.
30:46>> Absolutely. It's very powerful. the
30:48stories you're talking about, I've seen
30:50them as well.
30:51>> Um, we're able to eliminate huge amounts
30:55of creditor bills with this tool. It's a
30:58marvelous tool for that purpose.
30:59>> Yeah.
31:00>> Um,
31:02you know, I I think the key again is is
31:05not waiting.
31:07>> Um, it's it's
31:09jumping on the situation. And let me
31:12talk let me talk a little bit about the
31:13timing. Why I think that's so important.
31:15>> Yeah.
31:17I think the timing of this is important
31:19because
31:20in an ideal scenario, we don't just want
31:24to file the year support. And the reason
31:26why is because when we file it, we have
31:29to list all assets we want and we have
31:30to list all creditors and other
31:32interested parties.
31:34If we fail to list a creditor or
31:36interested party and notify the court of
31:38them, then that party is not bound by
31:41the year support, meaning it has no
31:43effect on them. Well, that's not good.
31:46It means they jump a front of the year
31:47support.
31:48>> So, what we typically want to do is make
31:50sure we have time to identify all of
31:52those creditors. How do we do that?
31:54>> Well, we want to look at the mail. We
31:56want to look at past records. We want to
31:58begin the estate process. We want to go
32:00ahead and open the estate and run our
32:01debtor creditor ad
32:03>> to cause creditors to to have to file a
32:06claim.
32:07>> Yeah. that allows us between between
32:10each of those things and pulling credit
32:12and all that kind of stuff, which we
32:14can't pull credit until after we have
32:15the estate open,
32:16>> somebody appointed.
32:17>> We have to have somebody appointed to to
32:18legally do that.
32:20>> And so that is what allows us to develop
32:23a solid list of creditors, feel really
32:25good about it, so that when we file for
32:27your support, we know we got them all.
32:29Mhm.
32:31>> And so when we look at the timing of
32:34that, I don't want folks to delay
32:36because that takes time. We've only got
32:37two years on our year support petition
32:39anyways.
32:40>> Yeah.
32:41>> And so, you know, we've had clients come
32:44to us where we've only got two, three,
32:47four months to get your support filed.
32:48>> Yeah.
32:49>> That's not enough time to do that work
32:51>> to get the estate open and then run a
32:52creditor's ad. I mean, running the
32:54creditors ad takes a month and then the
32:55creditors have three months
32:56>> Yeah.
32:57>> to respond. Well, that's four months.
33:00>> Yeah.
33:00>> So, if we have less than that time,
33:02we're obviously we're going to do the
33:03best we can.
33:04>> Yeah.
33:04>> We're going to do as much of the
33:06investigation as we can and we're going
33:07to file our petition, but
33:11I'm not feeling as secure about it,
33:14right? Or as good about it as I would if
33:16I had the time to go through the typical
33:18process that we know works, that that
33:20gets it done well, that we're not going
33:21to have some random creditor pop up and
33:23they're not on the list and now we have
33:24to pay them.
33:25>> Yeah. So it does much better for the
33:28client to move early because we're able
33:30to get a much better result for the
33:33client. And at the end of the day, you
33:34know, all of our processes, everything
33:36we do in the office, everything our
33:38lawyers do in parallegals do is designed
33:39for how can we get the best result for
33:41this client based on the facts they're
33:42bringing us.
33:43>> Yeah, that makes sense. So I have a more
33:45rare situation, but we do see it from
33:47time to time. When we talk about year
33:50support, we're talking about legal
33:52marriages. Um, so when I say that, I say
33:54that because of there was such a thing
33:57as common law marriage in Georgia in the
33:59past. And again, we don't see it too
34:01often anymore, but there have been
34:03clients come to us that they say they
34:05had a common law marriage.
34:06>> Yeah.
34:06>> How does that play into this if that's
34:08someone who feels like they may have had
34:10a common law marriage?
34:11>> Oo, that's a good question. Yeah,
34:13marriage is a marriage.
34:14>> So, if we can prove the marriage, we
34:16have a marriage and we have your
34:17support.
34:19So, then we look at how do we prove
34:20common law marriage? Mhm.
34:23>> And in Georgia, uh, common law marriage
34:25stopped in 1996. I believe the
34:27relationship had to begin in or before
34:291996. Okay. There's a number of
34:32requirements for common law marriage.
34:33Did you hold yourself out? Did you
34:35consummate the marriage? Like all of
34:36those kind of requirements. So, we have
34:38to prove those requirements.
34:40>> Um, because we're not going to have the
34:42typical marriage certificate that you
34:45would normally have to prove the
34:46existence of a marriage.
34:47>> Yeah.
34:48>> But if we can prove it, then we're
34:50entitled to your support. Yeah.
34:51>> Now, what's the downside?
34:53>> We're in a dispute. We have we have the
34:56stepkids over here that are not too keen
34:59on this year support thing. So, they can
35:02now challenge the existence of the
35:04marriage. And if they win there, they've
35:06won the year support battle.
35:08>> Yeah.
35:08>> If they lose there, we file our petition
35:10for your support, right? Because we won
35:13and showed the marriage. They get
35:14another chance to attack on the year
35:16support directly. So, it just it it's
35:19just another process that we have to go
35:21through that gives our opponent an
35:23opportunity um to to attack what we're
35:26trying to do.
35:27>> That makes sense.
35:28>> Some interesting things just as a just
35:31as a bit of trivia since you asked.
35:33We've actually
35:35>> weird things with common law marriage
35:36because
35:37>> um
35:38>> you know, every state states that have
35:41had or currently have common law
35:43marriage have their own rules about it.
35:45Mhm.
35:45>> Well, because of the full faith and
35:47credit provision in the US Constitution,
35:51>> if we can prove the common law marriage
35:53in any state,
35:54>> it has to be accepted in this state. So,
35:57we've had circumstances where we
36:00couldn't quite get it in Georgia,
36:03>> but for example, maybe the couple had
36:05lived in another state. I'm trying to
36:07remember one. I think it was one of the
36:08Carolinas in this case. They had lived
36:11in one of those states for a period of
36:13time.
36:13>> Okay. And we were able to go back and
36:16look at that state's common law marriage
36:18rules,
36:19>> find out, oh wow, look, we can check all
36:21the boxes there.
36:22>> We couldn't get it done in Georgia, but
36:24we could get it done under that state,
36:25prove the existence of the marriage in
36:27that state at that time,
36:29>> show the continuity of the relationship
36:31in the marriage to the present day into
36:32the date of death. And then our court in
36:35Georgia accepted the existence of the
36:38marriage because it was a valid marriage
36:40under a foreign state's laws even though
36:42it would not have qualified as a common
36:44law marriage in Georgia.
36:45>> Look at that strategy. Oh my gosh. Wow.
36:48So, it was still upheld here because it
36:51was there
36:52>> and that allowed us to file the year
36:54support and push the year support
36:55through and make a difference in that
36:57surviving spouse's life.
36:59>> That is so interesting. Okay. Yeah. As
37:02long as I've been doing this, I think
37:03your support is the thing that sticks
37:04out to me the most as being um again the
37:07number one advantage for a surviving
37:08spouse or a minor child. Um when it
37:10comes to a state administration, um it
37:12can be a disadvantage unfortunately for
37:14the step kids um of the of the stepmom.
37:17I mean the deceased children
37:19>> um because they could potentially
37:22inherit less depending on how it goes.
37:24But when there's not a will.
37:26>> But with a surviving spouse again, it's
37:28been a huge benefit for them from what
37:30I've seen. Yeah, I think that's that's
37:33the nature of law.
37:35>> Yeah,
37:35>> that's the na and and law is just the
37:38arrangements and agreements that we have
37:40as a society for how things work.
37:42>> Yeah.
37:42>> Whenever there's an advantage created
37:44for one party, there is always a
37:45corresponding disadvantage for someone
37:47else.
37:48>> Makes sense. It does. And your support
37:50creates an advantage for a surviving
37:52spouse
37:53>> and it creates an equal disadvantage for
37:55creditors and for other heirs of the
37:57estate
37:59>> um that are not the surviving spouse.
38:02>> Does it change if there's a will for the
38:04year support? Does that change it?
38:06>> That's a great question.
38:08Yes and no.
38:10>> So let me explain because um
38:13generally speaking, no. Because remember
38:16our standard process is identify and pay
38:20creditors then make distributions under
38:23state law or the will.
38:24>> Yeah.
38:25>> Okay. Well, your support just adds the
38:28surviving spouse is a creditor.
38:30>> So then that surviving spouse gets
38:32whatever distribution, payment, cash,
38:34whatnot under the year support. Yeah.
38:36Pay the rest of the creditors. Then we
38:38go to the will and we say what does the
38:40will say? And we do whatever the will
38:41says.
38:43>> With whatever assets are left.
38:44>> Yeah. There is an exception to that
38:46though.
38:48A will, one of the other things a will
38:51can do is it can force a year support
38:55election. And what that means is the
38:58person that uh our deceased
39:01>> can put in the will a statement that's
39:04that essentially says what I have
39:06written in my will for my spouse is in
39:09lie of years support. And that's an
39:11enforcable statement.
39:13What that means is it forces the spouse
39:15to make a choice.
39:16>> They can file your support and go for
39:19your support, but if they do, they
39:21forfeit anything the will gives them.
39:22>> Oh, wow.
39:23>> Or they can not go with your support and
39:26take whatever they get under the will.
39:28>> Mhm.
39:29>> And so what do you do? Right. It
39:31depends. Again, we're back to the
39:33analysis of okay, let's see under
39:35scenario A. If we don't file year
39:38support, these are where we think the
39:39creditors are.
39:40>> Yeah. This is what the the spouse is
39:44going to get under the will.
39:46If we do file for your support,
39:49we think these family members will
39:51object or won't object. We have these
39:53creditors. We think they will object,
39:56won't object.
39:57>> Yeah.
39:57>> If someone does object, all right, if we
40:00look at the math, we think we think this
40:02amount of money was um was
40:06uh the starting point or this is what
40:07was lost as a result of the death. they
40:10didn't receive a ton of life insurance.
40:12There aren't a lot of other assets. So,
40:14you're you're looking at those kind of
40:16calculations to figure out should I even
40:18file the year support petition or not.
40:20>> Yeah.
40:21>> And on that type of an election, much
40:24like the uh the no contest clause we've
40:26discussed in the past,
40:28>> when you file the petition, you've made
40:30your choice.
40:30>> Y
40:31>> even if you later dismiss the year
40:33support petition, you've still made your
40:35choice under that election in the will.
40:36And so, it's a big decision.
40:38It's a big decision that requires
40:40consideration and a thoughtful analysis
40:43and and some and conversations with the
40:45client, the legal team to make sure
40:47we're making the right decision for that
40:48case and that client.
40:49>> Exactly. That makes a lot of sense. So,
40:52as you know, we like to ask our social
40:54media user our social media users to
40:57send in comments and questions um in the
41:00comment section.
41:01>> So, we have one here for you. Um, in
41:03this situation, the person who commented
41:06said that his father passed away five
41:08years ago. Um, client or excuse me,
41:11commenter and sibling are the only
41:13children of their father. So, two kids.
41:16Um, he was married. Stepmom is not the
41:18mother of him or his sibling. When the
41:21father passed away, stepmom had asked
41:23them to sign papers to let her handle
41:25the estate and then stopped
41:27communicating with them altogether,
41:29>> which we hear often unfortunately. um
41:32what can they do? What should they do?
41:34>> Great question. I I really enjoy taking
41:37questions from from folks. I love
41:40>> real scenarios. Yeah.
41:41>> Um
41:44>> it's a hard situation
41:46and and it's one of those, you know,
41:48you've heard me say before when you're
41:50in a situation like this, one of the
41:52things you absolutely do not want to do
41:55is delay. Mhm.
41:57>> And another thing you absolutely don't
42:00want to do is just sign paperwork
42:04somebody puts in front of you.
42:07You've got to follow your gut. And so
42:09here, um, there's a ton of red flags for
42:13me.
42:13>> The number one red flag is is stopping
42:16communication. That's always a red flag
42:18for me. Um, if we've got a client that
42:20comes in and, you know, you're in a
42:23situation and you're asking questions
42:25and the other side just stops answering
42:27them or becomes evasive, that's always a
42:28red flag. You've got to follow your gut
42:30on that red flag.
42:31>> Yeah.
42:32>> Um, don't let it keep going. And so here
42:36if what I suspect and I'm I'm guessing
42:40what I suspect she had him sign um
42:45was
42:47papers to either if there was a will.
42:50You didn't say if there was a will or
42:51not, but if there was a will, it was
42:52probably some paperwork to say I agree
42:54with the will and I'm not going to
42:55object to it.
42:57>> If there was not a will, it was probably
42:59paperwork that says I agree you can be
43:00in charge of the estate. Okay,
43:02>> that's what I suspect it was. Um, it
43:05could also have been since it is a
43:07surviving spouse, it could have been a
43:09year support consent.
43:10>> You you can have consents to year
43:12support where um if all of the
43:15interested parties agree to it, it does
43:17accelerate the process. So that could
43:20have been a year support consent.
43:22>> And so
43:24um I would say in this situation, the
43:26first thing I would do is I would pull
43:28all of the filings from the court. I
43:31want to know exactly what he signed.
43:33>> Yeah.
43:33>> And that should be on file with the
43:34court. I also want to know everything
43:36that the stepmother has filed.
43:39>> Did she file your support? Was she
43:40opening the estate with a will or
43:42without a will?
43:43>> Have uh what did the court do? I want to
43:45see the court's orders.
43:46>> Yeah.
43:46>> Did um did the court appoint her as the
43:50administrator or executive? Did the
43:51court require inventories or annual
43:53returns? Did the court require a bond?
43:55Did the court give her expanded or
43:57limited powers? Unfortunately, because
44:00she asked him to sign something, I would
44:02suspect that very likely she has
44:05expanded powers, there's no bond, and
44:07there's no inventory because typically
44:08when you're asked to sign something like
44:09that, those are waiverss you're going to
44:11get as a part of that paperwork
44:13almost automatically. Not always, but
44:15it's it's a part of the the typical
44:17paperwork in that respect. And so, um, I
44:22would move very quickly and I would
44:25begin that investigation to see what's
44:27in the court files. Um, I would also
44:30want to reach out to the stepmom,
44:32probably by phone at first, but if that
44:34doesn't get anywhere, then it would be
44:36it would be a letter, a very formal um
44:39somewhat demanding letter of we need
44:41this information, we need to know what's
44:42going on.
44:43>> Yeah.
44:44>> Um, that's where I would start. What I'm
44:46looking for in that is I am looking to
44:48see if everything is done right. So my
44:50first goal here would be to get truth
44:53for the client.
44:54>> Okay?
44:54>> I want to get to the truth and I want to
44:56get to the bottom of what's really going
44:58on.
44:58>> Yeah.
44:58>> If for example we find okay there there
45:01is a will. She filed a petition for
45:04will. We look at the will. The client
45:05looks at the will and the will says I
45:07give everything to her.
45:09>> And the client says gosh that's that's
45:11dad's signature. I mean, I've seen a
45:13signature a thousand times that looks
45:15just like it.
45:16>> And we look at the will and and we and
45:18like there's no technical deficiencies
45:20with the will.
45:22Maybe maybe we and the client agree to
45:25investigate a little bit. We call the
45:26witnesses. We interview the witnesses to
45:28the will. Um if there's a drafting
45:30attorney, we interview the drafting
45:31attorney. If everything comes back like,
45:33yeah, the signing ceremony was good. Uh
45:35you know, we look into the circumstances
45:37surrounding the the the passing of his
45:39father and it's like he wasn't on pain
45:41meds. The will was written 5 years ago.
45:43It wasn't like a deathbed will. We're
45:45really not getting any traction.
45:48Maybe we don't do anything.
45:50>> Yeah.
45:51>> Maybe the outcome of that is we tell the
45:53client, "Here's here is the evidence we
45:56found. This is what we think the
45:58evidence shows. We can't find anything
46:01that looks like there's there's anything
46:03wrong going on here." Now, what she's
46:05done is controlling. What she's done was
46:08manipulative. what she's done morally is
46:12wrong and it's not the right way to
46:14treat your family, but legally we don't
46:16really have anything to go on. And if
46:18that's the case, we tell the client
46:19that. And that's that's always a hard
46:20conversation. But my opinion and and
46:23what we teach and preach at the office
46:25is you have that kind of hard
46:27conversation because,
46:28>> you know, you'd rather have a hard
46:30conversation with a client they're not
46:31going to like now.
46:32>> Yeah. than going down that road and
46:34getting thousands and thousands of
46:36dollars down that road and then having
46:37the hard conversation with the client
46:39later because that's where it's going.
46:41>> Yeah.
46:42>> Now, alternatively,
46:45maybe we pull the court files
46:47>> and we we take a look at the will and we
46:49find out that doesn't look right. This
46:51will was written, you know, two weeks
46:53before he died. The client's got another
46:56will um that that was five years old.
46:59every everything changed in the will two
47:01weeks ago. Um he was on heavy pain meds,
47:05you know, was something that you can
47:06tell was just printed off of off of the
47:08internet. Doesn't really look like it
47:10was done in a very valid way. Then we've
47:12got some things we can start challenging
47:14and we advise the client of that.
47:15>> Yeah.
47:16>> But the key is the first part is an
47:17investigation.
47:19>> And and from the client's side, what I
47:21would say is you have to be afraid. You
47:23you no, you you need not be afraid to
47:27rock the boat. That that's some of the
47:29best advice I can give. I mean, we
47:31always counsel clients because doing
47:33something does rock the boat. It it is
47:36going to make, you know, it is going to
47:39it is going to hurt some feelings
47:41sometimes.
47:43And we want to be careful with that. We
47:44always want to be careful with that. But
47:45if we're in a situation where we have
47:47someone that is trying to take advantage
47:49of a situation, unfortunately,
47:52um they're counting on you not to rock
47:55the boat. M
47:57>> and so you have to be willing to do that
47:59to do the investigation to set things
48:01right.
48:02>> Um and that doesn't mean we have to come
48:03out, you know, guns blazing and making
48:05accusations, but there's nothing wrong
48:08with sending a letter saying I need the
48:11following information.
48:13>> I just need to verify for my client that
48:15everything's being done right.
48:17>> I'm sure I'm sure you're doing
48:18everything right, but you know, we need
48:20to see it. We need to see the evidence
48:22so that we can tell our client that
48:25everything is being done right.
48:26>> It would give us some peace in the
48:28situation to know what
48:29>> and that's a valid request.
48:30>> Yeah.
48:31>> And if the person sends it over and
48:33everything's on the up and up, great.
48:35But what typically happens in that
48:36situation is you get no response or you
48:37get a whole lot of excuses.
48:39>> Yeah.
48:39>> And in that case, you've got to be
48:41willing to take the next step, which is
48:42typically filing something in court to
48:44to require that this information be
48:46produced. And that's really where you
48:47can get to the heart of the matter. And
48:49to add on to what you just said, it's
48:51really interesting. You said you have to
48:52be willing to kind of rock the boat to
48:54get this information. What I've told and
48:57our potential clients and on
48:58consultations before because they'll
48:59say, "I don't know. I I don't want to
49:01make her mad at me or anything." But
49:03then when I'm asking them questions,
49:04they'll say, "Well, she has an attorney
49:06and she's doing this, that, and the
49:07other."
49:08>> The way I my viewpoint is, and you can
49:10tell me if you think it's incorrect, but
49:11I see it as she already has her
49:13attorney. She already has someone
49:15looking out for her interests. And I
49:18think there's a common misconception
49:20that the heirs sometimes feel like
49:22that's everyone's attorney. It's the
49:24estate's attorney. But really getting an
49:27attorney to help them investigate this
49:29isn't necessarily even trying to rock
49:30the this person already has their help,
49:32their interest, you know, protected.
49:34It's to level that playing field to say
49:36now let's make sure your interests are
49:38protected as well, not just the person
49:40who has representation on the other
49:42side. Would you agree with that?
49:43>> I would. And and let me talk about the
49:45misconception. That's great.
49:47>> It's great you brought that up because
49:50as attorneys
49:52um we have ethical rules we have to
49:55follow.
49:55>> And one of those rules is our duty to
49:59our client. So we have a duty to look
50:02out for the interests of our client to
50:05the exclusion of everybody else. Right.
50:07That's what when you think of an
50:08attorney, that's what you think of.
50:09>> Yeah.
50:10>> And so we also have a duty of
50:12confidentiality. Meaning that if a
50:14client tells us something, we are going
50:16to keep that information confidential
50:18unless we need to use it to prosecute
50:20the client's case.
50:21>> Mhm.
50:22>> And so the client's secrets are safe
50:24with us.
50:24>> Yeah.
50:25>> Well, when the executive or
50:28administrator of the estate hires an
50:30attorney to represent them as
50:32administrator or executive, that
50:34attorney does not represent the the
50:37estate. That attorney represents the
50:39executive or the administrator and is
50:42advising them in their capacity as
50:46executive or administrator. But that
50:48attorney does not have any duties at all
50:50to any of the heirs or the beneficiaries
50:53of the estate.
50:54>> So if that administrator or executive
50:56confides in the attorney and says and
50:58tells them information, that attorney is
51:00not going to share that that attorney is
51:02not only not going to share the
51:03information, they're prohibited from
51:04sharing the information. Mhm.
51:07>> Now that attorney should advise their
51:10client, the executive administrator,
51:12that Mr. Executive or Missadministrator,
51:14you have duties to the heirs and the
51:18beneficiaries and the creditors of the
51:20estate and here are what your duties
51:21are.
51:24>> The executive administrator can take
51:26that advice, reject that advice. They
51:28can completely ignore that advice, go
51:30make a bunch of mistakes,
51:32>> come back to their lawyer and say, "Oh
51:34my gosh, I I I don't know what to do.
51:36I'm in trouble."
51:37>> Yeah.
51:39>> The lawyer's job is not to then say,
51:41"You know what? Yes, you are. You've
51:44done all these bad things wrong, and now
51:45I'm going to have to go to the court and
51:47go to the other areas and tell them all
51:49the bad things you've done wrong." No.
51:50The lawyer's job is to say, "Okay, let's
51:53see what we can do here. Tell me
51:54everything. Mhm.
51:56>> Tell me everything. Okay. All right.
51:59Well, let's look at this. You know, if
52:00we look at this in a different light, I
52:01don't think it's that bad. I think we
52:03could I think we could shape this in
52:04that way.
52:05>> And I think this over here, you know,
52:07let me ask you a question. When you did
52:09that, you believed that you were doing
52:11it in this way, didn't you? The class
52:13says, "Yeah, I I absolutely did. That's
52:15what I thought."
52:16>> That lawyer's job is to help the
52:18executive or the administrator stay out
52:20of trouble and get out of trouble. So
52:23the heir or the beneficiary
52:26has to have their own rep representation
52:28if there is conflict or if there is any
52:31kind of suspicion of the executive or
52:32administrator not doing their job
52:34>> because that attorney does not represent
52:36them in any way.
52:37>> Yeah, that's a great a great thing to
52:39explain to people because they don't and
52:41that it makes sense why you would think
52:42that that attorney is representing the
52:44whole estate. They're an attorney. They
52:45need to do what's right for everyone.
52:47But as you said in your um example
52:49there, they're really just looking out
52:51for that executive's interest to make
52:54sure that they can stay out of trouble
52:55if possible.
52:56>> Absolutely.
52:56>> Yeah.
52:57>> And it is their job. It's their their
53:00duty. It It's not that the lawyer is
53:02doing anything bad. The lawyer is doing
53:03the job we're called upon to do.
53:05>> If a client hires us, it is our job to
53:08work for that client to the best of our
53:09ability.
53:11>> And that's what they're doing.
53:12>> Exactly. And so the executive
53:15administrator
53:16can rely on their lawyer to do the best
53:18to work for their interest to the best
53:20of their ability.
53:21>> Yeah.
53:22>> Meanwhile, when the heir or beneficiary
53:24hires an attorney, they can rely on
53:25their attorney to work for their
53:27interest to the best of their ability.
53:28>> Exactly. Going back to the um surviving
53:32spouse situation that we've been talking
53:34about here, we had one that was really
53:35interesting recently that was regarding
53:38a prenuptual agreement. And that one was
53:42really confusing because how do
53:45prenuptual agreements come into play
53:47when it comes to estates? And for a lot
53:49of people who don't know what a
53:49prenuptual agreement, what is it? Can
53:51you explain that a little bit?
53:52>> That's a good question. Um, that's a
53:54good question. So prenuptual agreements,
53:56and I'm not a divorce guy, so I might
53:58mess this up. I know prenuptual
54:00agreements as we deal with them.
54:02>> Yeah. Yeah.
54:03>> A prenuptual agreement is an agreement
54:05that folks can enter into before they
54:07get married. Mhm.
54:08>> And a lot of times it deals with what
54:10happens if we get divorced.
54:12>> It can also deal with what happens if
54:13one of us dies. That's the part we get
54:15involved with, right? We're not so
54:17concerned of what happens if y'all get
54:19divorced, but we are concerned of what
54:20happens when somebody passes away.
54:22>> Yeah.
54:23>> So, you've got a prenup that is entered
54:25into before the marriage um uh begins.
54:28And then you have a postnuptual
54:30agreement sometimes which is made during
54:32the marriage.
54:33>> They both are complicated. They have
54:35their requirements for how to do it
54:36correctly. in, you know, to be valid and
54:38whatnot, but if if they are if they're
54:42done correctly, they are [snorts] valid
54:44against the estate and in the estate and
54:46in the probate context.
54:48>> Yeah. So, we had um the situation I'm
54:50talking about, one of our um potential
54:53clients recently had a situation where
54:56their father did pass away. He had
54:59promised her specific
55:01um jewelry and items that would go to
55:04our potential client, but then the
55:07surviving spouse of the deceased pulled
55:09out this excuse me, that was supposed to
55:11be in the prenuptual agreement that they
55:12were getting the jewelry, but then the
55:14surviving spouse was saying, "No, it's
55:15it's all mine. Everything in this house
55:17is is my property. It's marital
55:19property. You're not getting any of it."
55:21What can she do in those type of
55:23situations? If the prenup says, "Well,
55:24it's supposed to be split this But then
55:26the surviving spouse is saying no, it's
55:27not going to be.
55:29>> So in that situation, I would really
55:30look to the prenup because they if they
55:33defined property like that specifically
55:35in the prenuptual agreement.
55:37>> Um I would look there. Now the
55:38interesting thing about it,
55:41>> um and I just don't know this without
55:42doing some research is prenuptual
55:44agreements affect the rights between the
55:46spouses. But in your example, you have
55:49what sounds like a a child, a daughter.
55:51>> Yes, you got it. And the prenuptual
55:53agreement is saying that this property
55:55is going to go to the daughter should I
55:57die or should we get divorced.
55:59>> I would imagine, and again, I'm
56:02speculating here because I haven't done
56:04the research on this, but I would
56:05imagine that that's probably
56:07enforceable. And my argument would be
56:09that
56:11>> it's enforceable because the other party
56:12claiming the right is the is the other
56:16spouse that was a party of the
56:17prenuptual agreement. Mhm.
56:19>> And so that spouse gave up any right
56:21that she had to that property when she
56:23signed the prenuptual agreement and
56:25agreed that it would go to the daughter.
56:27So I I it sounds to me like the daughter
56:30is an intended third party beneficiary
56:31and that's the argument that I would
56:33want to make um for that particular
56:36situation based on based on what you've
56:38told me so far.
56:40>> Um
56:41I don't know if it would work or not.
56:43I'd have to do the research. But but
56:44that's what I would want to say. And I
56:45and I would want to say that daughter is
56:47probably in a pretty good position. I
56:48think uh that said I think if if I
56:52change your facts a little bit.
56:53>> Mhm.
56:54>> And I say it was you you have daughter
56:56one and daughter two.
56:57>> Okay.
56:58>> And this is daughter two saying no no no
57:00I want this. I think that changes it
57:01because daughter two isn't a spouse and
57:04wasn't a party to the prenuptual
57:05agreement. I think that I don't know
57:07that that would be interesting to me.
57:08But I think because the other party
57:10that's claiming the right is the spouse
57:12that signed the prenup. think I think
57:14that we're pretty good there.
57:15>> I love that. It's really interesting. A
57:17lot to consider with those types of
57:19situations. Um
57:21>> cool. We went over a lot today again um
57:24with all the topics. Yeah. Yeah. Really
57:26interesting. A lot more we could dive
57:27into.
57:28>> Um but for our listeners out there,
57:31please comment more questions. We love
57:33the questions. Um those are one of our
57:35favorite times of this podcast is to
57:37answer the questions you guys have
57:39because those are what we really want to
57:41address u moving forward. Of course,
57:43reach out to our office at any time if
57:45you have a specific situation that you
57:47need some help with. Um, I think that's
57:49it for today, but thank you guys so much
57:50for listening to Probate Matters. Eric,
57:52thank you.
57:53>> Yeah, thank you, Jenny. And remember,
57:54like and

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