The Swier Law Firm Estate Planning and Probate Law FAQs

The Swier Law Firm Estate Planning and Probate Law FAQs

 

Have questions? We have answers! Our South Dakota attorneys answer the questions they hear most often from clients just like you.

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  • What Does Testate Mean In Estate Planning?

    What Does Testate Mean In Estate Planning?

    To die with a will (opposite of “Intestate”).

    Example Of Testate In Regards To Estate Planning

    When I went to the probate court’s office after my grandpa died the first thing the lady asked me was “Did he die testate or intestate?”.  I had no idea what she was asking me.  I guess he died testate because he did have a will.

  • What Does Reverse Mortgage Mean In Estate Planning?

    What Does Reverse Mortgage Mean In Estate Planning?

    A mortgage loan placed on unsecured property.  These are marketed to older individuals as allowing them to get cash for the equity in their home with no monthly mortgage payments.  These are sold to sound wonderful but there are very few circumstances in which I would say this is the right option for a client. Treat carefully here and consult a professional not selling you something (attorney, accountant, financial advisor) prior to entering into one of these.

    Example Of Reverse Mortgage In Regards To Estate Planning

    My dad thought that putting a reverse mortgage on his house was a great idea to help him in his old age, but now that he’s passed we are having a lot of issues and owe a lot of money on a house that had previously been paid off.

  • What Does Renunciation Mean In Estate Planning?

    What Does Renunciation Mean In Estate Planning?

    The formal giving up of a right to serve in a position – personal representative/trustee/executor etc.  This is generally done in writing and filed with the probate office/court or interested parties of a trust.  A renunciation does not generally have the power to name a successor, it is just giving up the right to serve.

    Example Of Renunciation In Regards To Estate Planning

    I was named as the trustee of my brother’s trust, but I’m currently living abroad and don’t have the time to serve.  My attorney is helping me file a renunciation so the person next in line can be appointed.

  • What Does Real Property Mean In Estate Planning?

    What Does Real Property Mean In Estate Planning?

    Refers to land and any property that is attached to that land; i.e. buildings, homes, etc.

    Example Of Real Property In Regards To Estate Planning

    My dad’s probate estate was super small since most of his assets were retirement accounts, life insurance or assets he had placed into a trust before he died.

     

  • What Does Probate Estate Mean In Estate Planning?

    What Does Probate Estate Mean In Estate Planning?

    Assets that will go through probate, either through a will or by state law.  This generally does not include property that was jointly owned, payable on death, life insurance, retirements accounts or other assets with beneficiary designations or otherwise already in trust.

    Example Of Probate Estate In Regards To Estate Planning

    My dad’s probate estate was super small since most of his assets were retirement accounts, life insurance or assets he had placed into a trust before he died.

  • What Does Probate and Estate Administration Mean In Estate Planning?

     What Does Probate and Estate Administration Mean In Estate Planning?

    A process involving a court/state oversight through which a decedent’s assets (estate) are distributed to the decedent’s heirs/devisees/issue/descendants.

    Example Of Probate and Estate Administration In Regards To Estate Planning

    Lots of people talk about how horrible probate is, but my mom’s was actually pretty easy and the clerk at the probate court was very helpful.

  • What Is A Personal Representative, Executor or Administrator In Estate Planning?

    What Is A Personal Representative, Executor or Administrator In Estate Planning?

    The person who is in charge of probating a decedent’s estate including finding assets, paying creditors and making distributions.  

    You cannot be forced to serve in this position, even if you were specifically named in the Will.

    Example Of Personal Representative, Executor or Administrator In Estate Planning

    My friend named me as her personal representative, but I don’t live anywhere near where she passed and we hadn’t spoken in years.  I am declining to serve, I’m just not in a place to manage her estate.

  • What Is Personal and Tangible Property In Estate Planning?

    What Is Personal and Tangible Property In Estate Planning?

    Generally speaking, things you own that can be touched and/or moved.  These are physical items such as jewelry, furniture, art, cars, clothes, books etc.  This does not include physical things that represent intangible items such as stock certificates, savings bonds etc.

    Example Of Personal and Tangible Property In Regards To Estate Planning

    I am so excited! My grandma wrote a separate list of who was to inherit her tangible property and she gave me the antique bookshelf I always loved.  My uncle wanted it, but she gave it to me.

  • What Does Per Stirpes Mean In Estate Planning?

    What Does Per Stirpes Mean In Estate Planning?

    A way to distribute assets from an estate “by representation” so that the living members of the generation closest to the person who died will receive the distributions. 

    Example: If you have 3 children and 2 grandchildren, your assets would pass equally to your 3 children provided they are all living at your death 1/3 to each and nothing to your grandkids.  If a child, the parent of your 2 grandchildren dies before you, then those 2 grandchildren would share the amount their parent would have received.  Thus, your 2 surviving children would each receive a 1/3 share of your estate and your 2 grandchildren would split the remaining 1/3 of your estate.

  • What Does Per Capita Mean In Estate Planning?

    What Does Per Capita Mean In Estate Planning?

    A way to distribute assets from an estate “by total headcount” so that all of your descendants/issue will receive distributions regardless of their generation.  

    Example Of Per Capita In Regards To Estate Planning

    My grandpa died and all of his descendants got the same percentage of his estate.  So my mom, and 2 uncles each got a 1/5 share and my brother and I each got a 1/5 share.  I don’t think that’s what he intended, but his will clearly said to distribute per capita.