Resident of Ohio, Vacation Property in Minnesota--Two wills?

Question: I previously executed a will that only disposes of my vacation home in Minnesota. I now wish to execute a will for all my other property. Can I have two separate wills, one for the Minnesota property and another for all my other property?

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Answer: When revocable trusts are used to pass on testator's property after death (also known as a living trust), it's not uncommon to create separate living trusts for various parcels of real property owned by the testator. However, separate wills is not standard. Most last will forms (such as the sample last will at MedLawPlus.com) explicitly revoke all prior last wills. I see no reason to have two separate wills under the facts related above. The only fact pattern I have run across where it is common for a testator to have two wills is the situation where he or she lives in the United States but owns real property outside of the United States.

Under the fact pattern given in the question, the typical setup is for the testator to create one will disposing of all property. At death where a decedent who lives in one state but owns real property in another, two probate estates are created: one in Minnesota just for the real property decedent owned in that state and a second estate in Ohio for the remainder of decedent's property. The fact that the will was executed in Ohio (i.e., the decedent's state of residence) according to that state's probate code will not prevent its admission into probate court in Minnesota for disposition of the real property in that state.

Probating A Will Executed In Another State

Question: My mom is a resident of North Carolina. She is visiting me in New York. She is not feeling well and is also 96 years old. I have her will from Florida, where she used to live, do I need a new will for North Carolina?

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Answer: The requirements for execution of a last will are nearly identical in both Florida and North Carolina as both statutes are based upon the Uniform Probate Code.

Florida: Section 732.502 Execution of wills.--Every will must be in writing and executed as follows:
(1)(a) Testator's signature.--
1. The testator must sign the will at the end; * * *
(b) Witnesses.--The testator's: 1. Signing, * * * must be in the presence of at least two attesting witnesses.
(c) Witnesses' signatures.--The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.

North Carolina: Section 31‑3.3. Attested written will.
(a) An attested written will is a written will signed by the testator and attested by at least two competent witnesses as provided by this section.
* * *
(c) The testator must signify to the attesting witnesses that the instrument is his instrument by signing it in their presence or by acknowledging to them his signature previously affixed thereto, either of which may be done before the attesting witnesses separately.
(d) The attesting witnesses must sign the will in the presence of the testator but need not sign in the presence of each other.

A written last will properly attested by two witnesses according to the laws of Florida should generally be valid in North Carolina; however, you would need to take the document to a North Carolina lawyer for a legal opinion. Some states restrict who may serve as a witness to a last will (such as disqualifying beneficiaries) but North Carolina's statute on this point is very broad. See Section 31-8.1.

Another issue is whether a will made self-proving in Florida under that state's law is admissible as such in North Carolina. A self-proving will is one admissible without further evidence and usually signifies that the testator and witnesses' signature on the document are attested under seal by a notary. The generic format for a North Carolina self-proving will is found in Section 31‑11.6. I note that the suggested format in the statute has a blank for the state in which the document was executed before a notary, which leads one to believe North Carolina law envisions last wills executed in other states qualifying as self-proving in North Carolina. Again, a NC lawyer must review the document to give you a legal opinion. What is the consequence if the Florida last will does not qualify as self-proving in North Carolina? An affidavit from one or more of the witnesses to the will's execution must be located and affidavits obtained for probate of the will.


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The Pitfall of Specific Bequests

Question: I own a valuable vintage auto that I wish to leave my nephew but only if there is enough money in my estate to take care of my wife. Can I do that with an online last will? Stan, California.

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Response: When a last will bequeaths a specific item of property to a designated beneficiary, we call that a specific bequest. The problem presented by your question is that the standard language of specific bequests are that the devisee takes without any qualifiers (i.e., red corvette to my nephew James Jones). To accomplish the result you desire, the specific bequest of the vintage auto to your nephew should be conditioned on the size of the marital estate with your wife (if she survives you) being of a certain size. I'm not aware of any online last will template containing such language. The MedLawPlus.com® last will form does not allow for conditional specific bequests. I suggest you retain a lawyer to custom draft this provision of your last will.

One additional trap to keep in mind with last wills is that specific bequests of an identifiable item of personal property only apply to that item (i.e., the specific vintage auto you name in the will). For instance, if you leave a 1966 red Corvette to your nephew but later sell it and acquire a 1967 Ford Thunderbird which is owned at death, the specific bequest to your nephew will not transfer from the Corvette to the Thunderbird meaning the specific bequest of the vintage auto fails under this example. See Section 2‑606 of the Uniform Probate Code.

Intestate Succession--Laws of US States

Over at my commercial website, there is a page with links and excerpts of the intestate succession laws of the 50 states plus the District of Columbia. These laws are used to determine who inherits in cases where the decedent dies without a valid will. At the bottom of the page for each state is a comment text box. Feel free to leave a question there about the intestate succession laws for that state. If there are sufficient fact stated in a concise manner, I'll try to answer the question.

Child from Prior Marriage / Relationship

Question: I have a child from a prior relationship but am now married to another woman. My wife is pregnant. I want to provide for my eldest child in case I die. Do I need a trust?

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Response: Perhaps. The standard estate planning template for a married couple is for each spouse to leave everything to the other spouse with the kids as contingent beneficiaries in cases where both the husband and wife die. That template does not necessarily work for blended families (i.e., one where at least one child of the couple has a parent other than the husband and wife). Taking your case as an example, if you die and everything is left to your wife, can you rely on her to provide for your child by another woman? That is the crux of the problem with blended families. So you are left with trying to balance the needs of children by different mothers as well as your wife in your estate planning decisions.

One option is life insurance. Perhaps there is a child support order in effect in your case already requiring that you maintain life insurance payable to the mother of your eldest child. Let's assume you have not been ordered to maintain life insurance for the mother of your child. The first priority is to ensure the basics of life are covered for your eldest child. If you are a younger man (which I assume from the question), term life insurance is a cost effective approach to cover necessary living expenses and education until the child reaches adulthood. Another administratively simple option is to name the child a transfer on death beneficiary of one of your financial accounts (in lieu of life insurance). Most states allow this type of designation for financial accounts and it's easy to put in place.

But a minor cannot take control of his or her own finances. If you die leaving your child the beneficiary of a life insurance policy, the child's mother mostly likely will be named guardian to hold and spend that money for the child's benefit. If you do not trust the mother to do the right thing, then a revocable trust that remains unfunded until you die can be useful. What a revocable trust does is allow you to name a successor trustee for after your death to administer any assets that have been set aside for your eldest child. The successor trustee, as opposed to a court appointed guardian (who would most like be the child's mother), will be the one to take control of investing and disbursing the trust funds for your child's benefit.

The foregoing are just general observations on a few fragmentary facts. An attorney must sit down with your and go over your entire family and financial situation to give a recommendation on whether or not a trust is right for you.