My father died today. Without a will. Legal advice needed.

Factual Questions
1

Author’s foreward: Cancer sucks.

Anyway… You know how subjects like wills/living trusts are never brought up, or actively pursued, because you really love your father, you mother really loves her husband, and the subject dwells, by nature, upon the event you never want to happen?

Well, maybe my mom and I are just overly sentimental. Or maybe we were optimistic to the point of irresponsibility. Or maybe there are other mental deficiencies that had best not be looked at to clearly at all.

Oh yeah, a point. Anyway, as the subject says, my dad didn’t leave a will or a living trust which means, as we understand it, the state (Hawaii in this case) is liable to freeze his assets, making life rather difficult for myself (working a mere part time job) and my mother, who had quit her job to care for my father.

Complicating the issue is the fact that my dad has at least one ex-wife and a couple kids (all adults) floating around. I’m assuming the rationale behind the asset freezing is in case the exes want to contest my dad’s non-existent will. Or something. Of course we haven’t heard from any of the ex-wives or their kids in over 6-7 years, so it’s unlikely that we’ll hear from them unless they are, morbidly, chronic obituary readers.

Anyway, is there anything we can do to protect ourselves? My mom already drew the money out of the joint accounts she had with my dad, and wrote a check from their joint money market account that we deposited into my checking account (six business days to clear, so dunno if it’ll get frozen or not), so I guess that much is taken care of.

More specific questions: Can the court freeze my dad’s stocks? What about my old brokerage account that is still listed as a custodial account in my name w/ my dad as custodian?

2

no wonder they said, “where there is a will there is a way”.

3

Sorry to hear about your loss.

You need to seek legal counsel (a lawyer) in your state because state laws vary.

4

Hawaii uses a uniform probate code

http://www.capitol.hawaii.gov/hrscurrent/vol12_ch501-588/hrs560_upc/upc_560.htm

Uniform Probate Code of Hawaii
TITLE 30A. UNIFORM PROBATE CODE
Chapter 560 Uniform Probate Code

ARTICLE II

INTESTATE SUCCESSION AND WILLS
Abstract: TITLE 30A. UNIFORM PROBATE CODE Chapter 560 Uniform Probate Code CHAPTER 560 UNIFORM PROBATE CODE ARTICLE I GENERAL PROVISIONS, DEFINITIONS, AND PROBATE JURISDICTION OF COURT Part 1. Short Title, Construction, General Provisions Section 560:1-101 Short title 560:1-102 Purposes; rule of construction

Here is (I think) the entire code
http://www.capitol.hawaii.gov/hrs1998html/Vol12/Upc/

5

Get a lawyer; the things you do to “protect” yourselves might technically be stealing from the estate depending on how the accounts were set up. Don’t worry about your funds; most states protect the surviving spouse so she and her children don’t lose their house or their livelihood while the estate is still open, but you need a lawyer skilled in estate practice in your area to make sure you can take advantage of those rights.

I’m sorry for your loss.

–Cliffy,
law-school graduate

6

Sorry for your loss.

Definitely get a lawyer, a specialist, the best you can find. If the estate is of any significant size, any fees you spend will be well worth it. When my parents died, we spent approximately $20G in attorney fees, which saved the estate approximately $200G.

Regarding your half siblings, keep in mind that he was their father too.

A lot depends on how the property was held, when he got it, and even the terms of his prior divorce. For example, if he and your mom held the stocks as joint tenants, they become hers upon his death without going through probate.

7

You should get a lawyer, and the first thing he/she will do is probate the estate. Since there was no will, an administrator of the estate will be appointed. Publication will be given to all necessary parties, including unknown heirs. Personal service should be given to all those whose names and addresses you know, but since the estate is the subject matter, service by publication will suffice, unless Hawaii requires otherwise for those whose names and addresses you know. This will take care of all those heirs floating around. If their names are unknown, publication will include “Unknown Heirs.” The same with creditors.

The state doesn’t freeze anything. During the probate proceedings, property can be sold, etc. If you don’t probate, unknown heirs can claim their interest anytime in the future. By probating and publishing, they and unknown creditors have had their day in court.

8

I’m sorry for your loss.

This is true if the account specified joint tennants with rights of survivorship. For joint tennants (with no qualifications) a percentage goes to the surviving tennant(s) and a percentage goes to the estate of the deceased (percentages agreed upon by the tennants when the account is opened). There are a couple of other flavors of joint tennants.

When my mother passed away, her bank accounts were frozen. The lawyer was able to unfreeze the account. I don’t know exactly what was required. This was in Louisiana where the state laws (especially inheritence laws) are different from any other state.

For these and many other reasons, you will need a lawyer.

9

Let me jump in to heartily concur with everyone who’s told you to talk to an attorney specializing in estates. The Hawaii State Bar Association has a referral service if you don’t know any attorneys. If it operates like the WI bar, it won’t recommend one attorney over another, just give you a list of names in your area. While this attorney is sorting through your dad’s estate, I encourage you to take the time to make sure your mother’s papers are in order, and your own while you’re at it.

10

My condolences on what must be a very difficult time for you.

I just was checking Hawai’i law, and one term I’d ask your attorney about is “tenancy by the entirety.” It’s a special, ultrastrong form of joint tenancy that’s reserved for married couples, and may protect your mother - particularly if she and your father owned a house together.

New York, where I practise law, presumes tenancy by the entirety for any real estate sold to a married couple (scroll down for discussion). Note that in NY it only applies to real estate, but Hawai’i may recognize it for other forms of property as well.

Best wishes to you.

11

Urgh. The link isn’t working, so here’s the relevant info:

From David J. Colligan, Esq., Watson, Bennett, Colligan, Johnson, and Schechter, 600 Fleet Bank Bldg., 12 Fountain Plaza, Buffalo, NY 14202.

12

Thank you for all the advice, guys. My mother and I will be hunting for an estate lawyer as soon as possible, which will probably be some time after we find out whether or not my mom gets any survivor benefits from any of my dad’s pensions and whatnot.

Thanks especially to Otto, for that wonderful lawyer referral service, and to OxyMoron for a legality that may prove to be immensely helpful.

13

My condolences on your loss. Immediately get a lawyer who specializes in handling estates. Yellow pages, local bar association, friend, whatever, first thing Thursday morning.

14

Be careful with tenancies in the entirety; in many states you don’t get them unless it was specifically spelled out at the time of the purchase. That’s why you need a lawyer.

–Cliffy

15

Okay, my mom and I went to go see a lawyer today (he was booked up until today, honest!), and he foresees very little trouble with our particular case. ::knocks on wood::

Since all his accounts were joint accounts with my mother’s name on them, pretty much everything should become hers with minimal fuss. (FWIW, tenancy in the entirety was, thankfully, spelled out at the time of purchase of the apartment.) There’s no escrow estate because of this, and so we shouldn’t have to worry about my half-brothers popping up and claiming a share of my father’s estate.*

The only thing we have to worry about (besides steps like getting our apartment appraised), I think, may be our cars, whose titles may have both been in my father’s name. My dad actually signed the title to “my” car over to me, though we never did get around to finalizing things with the DMV. Well, we’ll see what happens with that…

Thanks again to you all for your advice and kind words. Both are greatly appreciated.

*This may sound kind of selfish, but keep in mind that they weren’t here when dad was sick with cancer/chemotherapy, and never called or wrote on his birthdays, Father’s day, holidays, etc. despite the fact that my dad had the same phone number and address for 23+ years and was listed in the phone book. Sure they have his genes, but they sure didn’t act like sons.