(Photo Illustration - MetroCreativeConnection - Legal-Ease - Gerald W. Townsend)

My probate legal assistant, Nancy Mason, who works with widows and widowers after the death of a spouse, suggested that I write this article. Nancy pointed out that many people don’t have any idea of what to do when their husband or wife dies. Let’s look at an imaginary client, Mrs. Villers, whose husband recently died, and see some things she should be thinking about doing.

* Settle Mr. Villers’ estate. We settle estates for these reasons: 1. To assemble the assets Mr. Villers left behind; 2. To use those assets to pay any debts Mr. Villers owed at his death; and, 3. To distribute the remaining assets to those who Mr. Villers wanted to have them. This orderly procedure commonly is called “Probate.”

Probate in West Virginia is simple and often doesn’t require the help of an attorney. First, Mrs. Villers will take Mr. Villers’ Will to the County Clerk’s Office in the county courthouse and “probate” it. Probate is a fancy word for “file.” While there, the probate office will appoint whoever the Will names to be the executor of the Will. This person is responsible for wrapping up the affairs of the decedent. As frequently happens, Mr. Villers’ Will nominated Mrs. Villers to be executrix (feminine version of executor).

As executrix, Mrs. Villers will fill out a form called the “Inventory and Appraisement” of Mr. Villers’ estate. On this form, in appropriate categories, she will list everything Mr. Villers owned when he died, including those things he owned jointly with someone else, and the value of those assets. Mrs. Villers then will file this form in the County Clerk’s Office. If Mr. Villers owned more than $100,000 worth of stuff in his own name, the County Clerk will “farm out” the estate to a “Fiduciary Commissioner” (a part-time probate official) for further supervision. If Mr. Villers had less than $100,000, the County Clerk will oversee the estate administration.

Either the County Clerk or the Fiduciary Commissioner will publish a legal notice in the local newspaper informing any creditors that Mr. Villers’ estate is under way and they have 60 days in which to submit their bills to Mrs. Villers for payment.

Allowing money to pay any debts, during the 60 days, Mrs. Villers can be transferring Mr. Villers’ assets to the beneficiaries named to get them in his Will. When bills have been paid and Mr. Villers’ other assets have been transferred to the beneficiary or beneficiaries, Mrs. Villers can close Mr. Villers’ estate by filing a simple report called either a “Final Settlement” or “Waiver of Final Settlement,” reporting to the County Commission her actions in settling Mr. Villers’ estate.

* Mrs. Villers should review her own documents. Mrs. Villers will want to review her own Will, Durable Power of Attorney, and Medical Power of Attorney to make sure that her own papers still are up-to-date. If they were well-written in the first place, they probably still will be in good order, because they probably anticipated who Mrs. Villers would want as her helpers following Mr. Villers’ death. In any event, she should review, and if appropriate, up-date them.

* Should Mrs. Villers give stuff to the kids? Frequently, after losing their spouse, clients will ask, “Should I put my house in my children’s names?” Or, “Should I transfer my life savings to my children?”

There is no answer which is absolutely correct in every situation. As a general rule, Mrs. Villers should wait at least a year, to let her feelings heal and get her feet back on the ground, before she takes any major steps to rearrange ownership of her home or other assets.

Bringing someone else into ownership of her home or life savings is risky. If Mrs. Villers puts her home or her money in her children’s names the gift is a one-way transaction; Mrs. Villers never can force the kids to give back what she gives to them. Any dishonesty, disagreements, or financial reverses in the kids’ lives could jeopardize her life savings and home.

Additionally, during the five years after she gives her home or her assets to the children, those gifts could keep Mrs. Villers from qualifying for Medicaid’s financial help if she has to enter a nursing home.

Bank accounts are particularly touchy. How they are set up will determine who gets the money in the account when Mrs. Villers dies. Even if her Will says that the kids are to inherit from her in equal shares, if she asks her bank to add a child’s name to her bank account, usually the bank will convert her account to a “joint and survivorship” account between Mrs. Villers and that child as the co-owners. At Mrs. Villers’ death the account will belong to that child, regardless of what her Will says. It would be better for Mrs. Villers to keep the account in her own name and designate the child she wants as her helper by naming him or her as helper in a Durable Power of Attorney.

On the other hand, if Mrs. Villers will require nursing home care, the best way to save the most of her life savings and her home might be to transfer some of the ownership to children. When done as part of a well-thought-out Medicaid plan, such transfers can save significant amounts of assets. It just depends upon the situation.

These are but a few of the concerns people worry about after losing their partner. It is a time of loss, grief, and upset. Be sure to get good advice before taking any steps which might not be in your best interest.

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Gerald W. Townsend is a partner in the law firm of Fluharty & Townsend, Parkersburg, West Virginia, with special emphasis upon Medicaid planning to protect assets from nursing home costs. He can be reached at jtownsend@fntlawoffices.com.