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  1. #1

    Default Preparing in Advance

    My question involves estate proceedings in the state of: WI

    My Dad is 79 and is still alive, but has been having some health scares. Since I only have one brother (who is 10 years older than me, but mentally immature) and he lives 600 miles away and we don't talk much and never see each other, and I live only 4 miles from my Dad, I assume I'm going to have to deal with the inevitable, so I've been doing some research into it, and it looks very complex. I hope to be wrong about that.

    My Dad has a paid-off house and car, bank accounts, and about the normal amount of possessions in his house of a person living alone. He is single. The house and car are in his name only. He has no known will.

    I know I'll be told here that I should have a discussion with my Dad about making a will and changing the house title, but it doesn't seem appropriate to do that when he's having health scares. It makes it sound like I'm saying, "Well Dad, it looks like you're about to die, so let's make things easier for me". Right now, I just want to learn what I'll need to do later so I don't get hit with it all at the worst time of my life.

    My questions: Would I automatically be made the executor/administrator since I live the closest, or is that up for a vote between my brother and I, and maybe a judge? Also, would I be allowed to enter and maintain my Dad's house during the probate process without getting in trouble for it? Also, how would I be able to sell my Dad's house if his name is on it? I understand that the assets from the house and accounts would be split evenly between me and my brother. However, my Dad has a brother as well who lives about 300 miles away. Would he be a factor in the probate process?

  2. #2
    Join Date
    Oct 2016
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    Default Re: Preparing in Advance

    As you have probably figured out any one of the health scares could be the last one. It is the time to sit down with your dad and help him make sure that his wishes are carried out when he is gone.

  3. #3

    Default Re: Preparing in Advance

    Quote Quoting PayrolGuy
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    As you have probably figured out any one of the health scares could be the last one. It is the time to sit down with your dad and help him make sure that his wishes are carried out when he is gone.
    He's told me in the past that everything would be split between me and my brother. The laws of Wisconsin (intestacy laws) already dictates that too, so that part would seem to be automatic. I think that's what he's counting on to happen. I guess the issue with me is how to go about it all when the time comes, and what pitfalls to avoid.

  4. #4
    Join Date
    Nov 2013
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    6,413

    Default Re: Preparing in Advance

    You get your father to write a will. Then there are no questions as to his intentions are after he dies. He does it himself online or through an attorney. If he dies intestate and you and your brother don't agree on the distribution of the estate, you will find yourself and your brother in probate court spending lots of money unnecessarily.

  5. #5

    Default Re: Preparing in Advance

    Quote Quoting budwad
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    You get your father to write a will. Then there are no questions as to his intentions are after he dies. He does it himself online or through an attorney. If he dies intestate and you and your brother don't agree on the distribution of the estate, you will find yourself and your brother in probate court spending lots of money unnecessarily.
    To tell you the truth, I can't "get" him to do anything that he doesn't think is necessary. 20 years ago, he helped me buy my house and we put it in both of our names jointly with the idea that it would be in my name only after I paid him back for it. Well, 8 years later I paid him back completely and told him that we'd have to go to the courthouse and fill out some papers to remove his name from my house. He resisted and argued about it, saying it wasn't necessary and not worth the trouble. So now it's still in both of our names. Getting him to think about dying, writing a will and all that's related to it is something he won't do. He wants to operate on the simple basis that after he dies, his assets go to me and my brother. I doubt my brother will have any problem with getting half of my Dad's assets. The law already establishes that this would be what would happen.

    At this point, I'm accepting that there won't be a will. I'm simply trying to get the basic facts about who would be made executor or administrator and what I'd have to do so I can deal with it effectively when the time comes. Would I automatically be made the executor/administrator since I live the closest, or is that up for a vote between my brother and I, and maybe a judge? Also, would I be allowed to enter and maintain my Dad's house during the probate process without getting in trouble for it? Also, how would I be able to sell my Dad's house if his name is on it?

  6. #6
    Join Date
    Oct 2016
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    3,227

    Default Re: Preparing in Advance

    Then dear old dad may screw you over. Because he owns half of your house half of it is going to go to your brother or at least the value of it.

    My bet is that if you don't get dad to make a will you will be back here after he passes. Probably under a subject, "My brother is stealing my house."


    Living closest may help a judge decide you are the best person the be the executor but it is by no means automatic especially if your brother also files for probate.

  7. #7
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    Jul 2018
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    Default Re: Preparing in Advance

    Quote Quoting Novicelegal
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    He has no known will.
    Have you asked him if he has a will or are you just saying that you don't know one way or the other because he's never said anything to you about it?


    Quote Quoting Novicelegal
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    I know I'll be told here that I should have a discussion with my Dad about making a will and changing the house title
    Whether you "should" have such a discussion is entirely up to you, but I can't imagine why he'd want to "chang[e] the house title" (unless it's in connection with transferring title to a trust that he creates).


    Quote Quoting Novicelegal
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    I just want to learn what I'll need to do later so I don't get hit with it all at the worst time of my life.
    Some non-legal perspective (FWIW): My mother died 12 years ago. She was 84 years old. She was in relatively good health for someone her age, but she fell in her backyard and hit her head on a rock. This happened in July, so it was fairly warm. No one was ever sure if the fall was caused by a stroke or whether the stroke happened because of the fall. She died five months later from resulting complications. When a person has lived eight decades, he or she has zero life expectancy (based on the average life expectancy being less than 80 years). When she died, I was, of course, sad, but she had lived a very full life, and no one was surprised. Preparing yourself for the inevitable is more of a mental exercise and requires very little in terms of educating yourself how the administration of an estate works.

    That being said, talking with your father about estate planning is not inappropriate.


    Quote Quoting Novicelegal
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    Would I automatically be made the executor/administrator since I live the closest, or is that up for a vote between my brother and I, and maybe a judge?
    There's no vote. The court will decide whom to appoint. If your father has a will, then the court will typically honor his nomination. If there's no will, then either you or your brother can seek to be appointed. If you seek the appointment and your brother doesn't oppose, then you'll likely get it. If he opposes, your proximity will factor in your favor, but we have no way of predicting how things might come out otherwise. Of course, if your father engages in estate planning, he may effectively have no estate to probate. For example, he could create a trust and put the house title in the trust, so it would not be part of the estate. His bank accounts should have pay-on-death beneficiaries, so the money in those accounts goes to the beneficiaries and would not be part of the estate. If he makes a trust, he could designate the trust as the beneficiary. That would leave a car and household effects. Assuming he doesn't have something of significant value, that might not require formal probate.


    Quote Quoting Novicelegal
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    would I be allowed to enter and maintain my Dad's house during the probate process without getting in trouble for it?
    If you're appointed as executor/administrator (or are trustee of a trust), doing this would be part of your job.


    Quote Quoting Novicelegal
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    how would I be able to sell my Dad's house if his name is on it?
    As executor/administrator/trustee, you would have the authority to sell on behalf of the estate/trust.


    Quote Quoting Novicelegal
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    I understand that the assets from the house and accounts would be split evenly between me and my brother.
    Not quite. In the absence of a will or an agreement between you and your brother, the assets would be liquidated. The proceeds would become an asset of the estate, which would be used to pay estate debt. Once all debt is paid, then the remainder would be divided between the two of you.


    Quote Quoting Novicelegal
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    my Dad has a brother as well who lives about 300 miles away. Would he be a factor in the probate process?
    No. In the absence of a will, the net estate would be divided between you and your brother, and his brother would be entitled to nothing (I'm assuming you have no predeceased siblings who left children).

    Final suggestion: IMO, administering a trust or estate is not a good DIY project. When the time comes, retain the services of a local probate attorney.

  8. #8

    Default Re: Preparing in Advance

    Quote Quoting PayrolGuy
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    Then dear old dad may screw you over. Because he owns half of your house half of it is going to go to your brother or at least the value of it.

    Living closest may help a judge decide you are the best person the be the executor but it is by no means automatic especially if your brother also files for probate.
    I've been told that if my Dad died, his name would simply be taken off my house title. That's the reason we set it up that way, in case I were to die before paying him back for the loan.
    I seriously doubt my brother will file for probate. He wouldn't even know how. He has mental problems and can't make decisions very well.

  9. #9
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    Default Re: Preparing in Advance

    Quote Quoting Novicelegal
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    20 years ago, he helped me buy my house and we put it in both of our names jointly with the idea that it would be in my name only after I paid him back for it. Well, 8 years later I paid him back completely and told him that we'd have to go to the courthouse and fill out some papers to remove his name from my house. He resisted and argued about it, saying it wasn't necessary and not worth the trouble. So now it's still in both of our names.
    That could be a big problem for you because his interest in "your" house would be an asset of his estate that would be divided between you and your brother. Unless your brother is willing to overlook that and allow your father's interest to be deeded over to you, then you may have to buy him out.

    Quote Quoting Novicelegal
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    I've been told that if my Dad died, his name would simply be taken off my house title.
    Told by whom? Is the house titled to you and him as "joint tenants with the right of survivorship"? If so, then it is correct that his interest would pass to you "automatically" upon his death.

  10. #10
    Join Date
    Oct 2006
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    15,612

    Default Re: Preparing in Advance

    Regarding your house, you need to see how it is deeded. If it is deeded in any way that confers rights of survivorship then If your father passes away before you, then you would automatically own the house and it would not be part of his estate.

    However, the downside to that is if you die before him in some freak accident or unexpected health problem, then if you have a wife or children, they won't inherit your house, it will be your father's property.

    You might want to consider having an attorney draw up paperwork to deed your house to you, so that it's only necessary to get your father to sign it so that you can file the paperwork yourself.

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