Wednesday, July 2, 2014

Death, Wills, Estates, Probate, Nebraska Law


I am writing this mostly for those women who are part of the ever growing population of second wives, and in particular, stepparents.  I am also addressing issues that are specifically found in the state of Nebraska but much of this information does pertain to anyone, including men who have lost their wives.

I want to first make it clear to anyone reading this that I AM NOT A LAWYER.  I do not have an education in this area - except through experience.  But that experience has opened my eyes to many legal problems for someone who loses their spouse.  The information I am sharing is a culmination of needs based on everything I had to go through after losing my husband.

Although we have all lost someone during our lifetime, there is no comparison to the grief you will be feeling after losing your spouse.  No one will understand except someone else who has lost a spouse.  No one.  Not his children; not his siblings; not even his parents if they are still living.  None of them had the closeness created by marriage and the day to day living with another person as half of who you are.  None of them had their entire future bound with him; none of them were dependent on him as you were to each other.  I cannot emphasize this enough - no one will understand what you are going through except someone else who has been through it. 

If you are already facing this tragedy, my first suggestion to you is to find someone who can understand.  It will be such a wonderful blessing to you if you have someone you can talk to and share the pain.  If you cannot find someone, consider seeing a counselor - a person trained to help you get through a major crisis in your life.  Because it is a MAJOR crisis!

I cannot emphasize this enough - get your wills written - NOW!  Having your wills written will save you so much suffering and heartache. 

Make your wills together so that each of you know exactly what your wishes are.  (In most states, a spouse cannot be disinherited.  In Nebraska a spouse can automatically claim half of the estate no matter what a will reads.)  If the wishes of one of you are to leave more than half to others, the spouse will have to agree to this arrangement.  

You will want to make sure each of you are cared for after one of you dies.  You don't want others coming in to take from your spouse what should be theirs.  This is particularly true for those women, and men, who have entered into a second marriage with children from the first marriage.  You obviously love each other and want to protect your surviving spouse so you would not want all of your worldly goods to be given to someone else.  Make your wills together to protect each other.

In many states, a wife inherits everything when the husband dies, but as I noted in the beginning, I am particularly addressing women in Nebraska.  The Probate Law in NE is different.  If your husband dies intestate - meaning without a will - the estate property is divided between wife, children and even parents.  (I will discuss "estate" property further down in this article.)

Make your wills now so that everything is clearly defined and there can be no argument about your wishes.

The Estate is the portion of your money and property that is not automatically turned over to someone when you die.
It can be any number of things and can be quite complicated if you have not designated heirs.

There are several ways you can make sure that your property ends up where you desire, aside from the will.  I will go through each area that I know of and explain the options.

If you and your spouse own real estate, you will want to make sure the deed reads as necessary for the state you live in.  Some states, like NE, have Laws and Statutes that negate your intent if it is not written correctly.   Make sure your deeds read both of your names followed by the words "Joint Tenancy WROS (With Right of Survivorship)".  In Nebraska this is a must.  It cannot be a simple husband and wife conveyance as ours was.  We both thought the way it was written meant one or the other would inherit - but it didn't mean that.   If it does not read in this way, Nebraska reads it as a Tenancy in Common in which each of you own only half of the property and the half owned by the deceased will be put into the Estate.

The same is true for vehicles.  Make sure all of your vehicles are titled with both names and WROS (With Right of Survivorship), which means if one of you dies, the other automatically takes ownership.

Another method for stipulating who you want to inherit are beneficiaries.  Generally, things like your LIfe Insurance, IRA, 401K, or other retirement accounts, will fall under this area.  Make sure you have completed the beneficiary and keep it up to date.

A newer method of transferring ownership is called Transfer on Death (TOD).  This method can be used on any of the above mentioned money or property.  If you go in this direction, I would verify with a lawyer that it will be accepted in your state, as I am not sure all states recognize this.  I believe Nebraska has only recently recognized this as acceptable terminology.

You need to also know that many of these methods will negate a will.  What that means, for example, if your house is in Joint Tenancy WROS, or set up with a TOD, you cannot change who inherits through your will. 

A possible case in point:  You have remarried and moved into a house already owned by your husband.  He had set up a TOD to his grown children when he was divorced so that if something happened to him the property would be transferred to them.  He is now married to you and written in his will that all of his possessions, including the house, would go to you if he died.  If he did not change the TOD on the Deed, it would stand as is.  Even though he wanted you to have the house, it would go to his children.

Another possible case:  You have remarried but you did not change the beneficiary on your LIfe Insurance from your children to your spouse.  Even if you specifically said in your will that you want your Life Insurance to go to your spouse, it will automatically be given to the beneficiary.

Again, all of the methods for ownership I have listed above - Joint Tenancy WROS, WROS, TOD, Beneficiary - will stand as is after your death and you cannot change them just by writing a will.  You must go back and change each if your wishes have changed.

Probate (in Nebraska)
Probate is when the courts decide who inherits an estate. You have to go through Probate if someone dies without a will.  Probate is based on law and is different in each state. Nebraska divides property in a very specific manner.

In Nebraska, a surviving spouse will automatically receive 1/2 of the estate.  The remaining 1/2 is then divided between the spouse (1/2) and other surviving heirs (1/2).  These include children and parents.  Although there is some help in place for the spouse with special deductions, it is still cut and dried as to who inherits the remaining portion.  You cannot fight Nebraska Probate Law.

There are always a lot of variables to anything, including Estates and Probate.  If you find yourself in this situation with no will, find a lawyer to help you sort through everything.  Don't try to take care of it on your own.

If you absolutely do not want to make a will, then at least make sure everything you have has been specifically notated  (conveyed) in one of the methods listed above so that you know it has been given to the person or persons you want to inherit.  Don't assume everything has been written properly.  Make a list and check everything you have then make changes as necessary.

I need to also make a point of stating this is a very short list of possibilities concerning this topic.  There could be any number of other problems associated with this that I did not touch on.  If your situation is much more complicated, I would suggest you see an Estate Lawyer who can guide you through the process of planning for your death.  You may want to do this anyway, even if your estate is small.

I will say once again - and again, and again - make a WILL!  Now!  You don't need the stress and pain of dealing with Probate on top of the immense suffering you are already going through.

I state once more that I am not a lawyer.  All of the information in this article is based on my own experiences, having gone through Probate in Nebraska.  I am writing this only to help other women so they do not have to go through what I have been through.  If I can change things for even one person, it will have been worth my time to write about it.