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An interview with Rick Grodner, Probate and Estate Planning Attorney:
Why did you get involved in the practice of Probate Law and Estate Planning Law?
Probate and estate planning can be a difficult time for people, because they are dealing with the fact of their own mortality or they are dealing with and working through the process of having lost a family member. For me it has always been an opportunity to help people get through this process so that at least the financial issues can be resolved. That way people can concentrate on dealing with their personal issues.
What is Probate?
Probate is the legal process of administrating the estate of a deceased person so that the assets of the estate are properly distributed, either the way that the deceased person has provided for in their Will or Trust, or if the deceased person did not have a Will or Trust, according to the laws of New Mexico.
What are the benefits of setting up an estate plan prior to death?
If there is a Will, the probate proceeding is less complicated, less expensive, and takes less time. The cost of the Will is small compared to the savings of the additional fees and costs involved in an intestate probate proceeding, where there is no Will. If there is a Trust, no probate proceeding is required.
With a Will or a Trust, the deceased is able to put into effect their exact wishes as to how the assets of the estate will be distributed…to the spouse, to the children, to other family members, to friends, to charities, etc. If there is no Will or Trust, then the assets of the estate will be distributed pursuant to the laws of New Mexico, which may not be how the deceased would have wanted.
When is a good time for people to be thinking about estate planning?
Since we never know when we are going to die, the event of being married is a perfect time, but certainly by the time there are children. Wills and Trusts can always be revised at a later date.
Is it more important to have a Will or Trust if you have children?
If you have children, with a Will or a Trust you are able to set up the distribution so the assets of your estate are distributed to them in trust until they reach the age at which you believe they will be responsible enough to receive the assets. You can decide how those trust funds will be used for their support, education, etc. If you don’t have a trust provision in a Will or a Trust, the children, if named as the beneficiaries, will inherit all of the assets of your estate when they reach age 18. I think most of us parents know from experience that that is not the preferred age.
What’s the difference between a “Living Will” and a “Will?
“Living Will” is an out-of-date term. It has been replaced by what we now call an “Advanced Health-Care Directive and Medical Power-of-Attorney”. This is a document we can prepare for you in which you appoint someone you trust to be able to make medical decisions for you in the event you are unable to make those decisions. You can also allow a hospital after necessary conditions are met, to NOT use extraordinary measures to keep you alive if you are in an irreversible coma, with no chance of recovery.
How does someone get started in the estate planning process?
You would contact my office and set up an appointment. At our initial meeting we would obtain the necessary personal information – the family relationships, the marriage, the children, the people who you would want to distribute your estate to, your assets, etc. I would then discuss with you and advise you as to whether a Will or a Trust is the preferred estate planning document for you, depending upon your particular individual situation. I would also discuss with you and advise you as to the preferred title of ownership and beneficiary designations for your real estate, bank accounts, brokerage accounts, retirement plans, and other assets.
Depending upon what type of estate planning you chose, we would then prepare all of the required documents and after your review of them and our making any changes you requested, there would be another appointment with my office for you to legally sign the documents. You would sign two originals of the documents, one for you to keep and one for us for safe-keeping.
How does someone get started in the process after someone’s death?
Upon death, the personal representative named in the Will or the trustee named in the Trust would contact my office and set up an appointment. We would review the financial situation of the deceased at the time of death and either start a probate proceeding in the court, if there was a Will, or a trust termination process, if there was a Trust. If the deceased did not have a Will or a Trust, we would start an intestate probate proceeding in the court.
Throughout either the probate proceeding or the trust termination process, I will advise the personal representative or the trustee of their legal duties and all other matters, and prepare all of the documents required to complete the process, so that the net assets of the estate are properly distributed.
What else can you share with us about what you do as a Probate Law and Estate Planning attorney?
I am also involved with representing people who want to request guardianship and/or conservatorship for a loved one. A guardianship and/or conservatorship proceeding is a legal proceeding where someone is incompetent to manage their financial affairs and/or their daily care for reasons such as an auto accident, dementia, stroke, etc. The court would then appoint someone, usually a spouse, but not necessarily, to manage the finances and to manage the daily care.
I am also involved with representing people who want to contest a Will or Trust, when there is a claim that there has been undue influence in how someone is having the assets of their estate distributed. For example, if one child believes that a sibling has used undue influence to have a parent who was vulnerable to that undue influence, leave an unfair share of the estate to them. It could be a sibling, a second spouse, a housekeeper, or some other person who has exercised the undue influence.
Of course, it’s your assets, and you can leave it to whomever you want and leave out whomever you want, as long as you are competent at the time and there was not such undue influence that your free will was subverted.