Q. Our mother’s estate is set up to pass automatically to her six children. She already gave us her house, retaining the right to live there rent free for as long as she desires. All insurance policies, investment accounts and bank accounts list the six of us as beneficiaries. The only part of her estate remaining will be her personal items like furniture, clothes, jewelry, and household goods. Will probate be needed, or is there a way to handle these items and avoid probate altogether? For example, could she rewrite her will to say something like “all my household and personal possessions will pass to my son, who as executor of my estate, will distribute them fairly and equally among my six children”?
A. Probate is not needed for furniture, clothes, jewelry, and household goods. All of these items can be distributed to the six of you as you may agree, and anything that is not wanted can be given away or discarded.
There is no need to rewrite her will.
It looks like you have all of your mother’s assets set up properly to avoid probate. Of course, there might still be a need for probate. For instance, she might move into a nursing home before she dies, and they might issue a refund check to her estate. The only way to cash a check like that will be by probating her will.
Q. What are the legal implications, if any, for an unmarried, middle-aged couple living together for several years? What about issues related to our health care?
A. Usually, there are no legal implications. However, if the couple purchases a house, car or other property together, and then they break up, there can be problems. Therefore, it is best to have no jointly owned assets.
Sometimes, if one of the partners is wealthier than the other, and that wealthier one dies first, the other partner may claim that they had been common-law married. The three elements of a common law marriage are living together, thinking of yourselves as being married, and holding yourselves out to the public as being married.
For example, if the couple had joined a local health club as a married couple to save money, that would be the kind of evidence the surviving partner could use to prove the existence of a marriage.
To prevent this from happening, the couple could sign a “Non-Marital Co-habitation Agreement” where they agree in writing that they are not married and that none of their properties will be jointly owned. An agreement such as this is not inexpensive and is typically only used when one or both of the partners are wealthy.
As to health issues, each of the partners can sign a Medical Power of Attorney as well as a HIPAA Release naming the other partner as agent.
The information in this column is intended to provide a general understanding of the law, not legal advice. Readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances. Ronald Lipman of the Houston law firm Lipman & Associates is board-certified in estate planning and probate law by the Texas Board of Legal Specialization. Email questions to [email protected].
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