Naming an Executor

The executor or, in many states, personal representative sees that your will is carried out. It is tiresome, detailed, time-consuming, thankless job. You are doing no favors for the person you name. All the property has to be tracked down and assembled (no easy job if you did not keep good records). Creditors notified. Heirs dealt with tactfully. Arguments settled. Bills and taxes paid. Property appraised and distributed or sold. Life insurance claimed if it is payable to the estate. Investments managed until they can be distributed to their new owners. Final accounting to be made, to the heirs and, perhaps, to the courts.

The executor usually works with a lawyer, so you do not need an expert in estate law or high finance. You need virtues that are much harder to find. An executor has to be willing, reliable, well organized, honest, responsible about money, fair-minded, and sensitive to the worries of the heirs. The usual practice is to ask able heirs (or friend) to do the job. If you name a professional executor a bank or a lawyer include a family member as co-executor, just to keep things moving along. Get permission before putting down someone’s name. If money is misspent or errors made, the executor can be held personally responsible.

A friend or family member usually doesn’t ask for compensation. But you should specify this in the will; otherwise, they may claim the commission allowed by law, even though you expected them to serve for nothing. (In large estates, it may be cheaper for a family member to take a commission than to take the same amount of money as an inheritance. The income tax on the commission may be lower than the death tax on the net estate.)

When banks or attorneys are executors, however, they may charge, and charge, and charge sometimes by the hour, sometimes a fixed fee, sometimes a percentage of the assets in the estate that goes to probate. Your estate will pay less if you keep the executorship at home and let your family hire a lawyer by the hour or by the job. (Executors should shop lawyers, asking more than one what they will charge; like any other business people, lawyers cut fees for jobs they want and that they know are up for bid. Your family may not even need an attorney.

More Living Trust Facts

Trust facts

Trust facts

The states have different title loans rules and taxes affecting trusts, so see a lawyer if you move. Your trust document should specifically allow for a change of state so the laws that govern the trust can change, too. Otherwise, the laws (and taxes) of your former state apply unless you get a court order allowing a change.

There’s a lot of legwork involved in transferring property into a trust. Your lawyer will prepare the new deed for your real property, as well as transfer letters for assets held by your bank, broker, and other financial connections. But you will have to follow up.

Don’t make the trust the beneficiary of your 401(k) or Individual Retirement Account. If you died, that whole sum of money would go into the trust and be taxed right away. By contrast, a spouse or other individual beneficiary can roll the 401(k) into an IRA and take payments over many years. That spreads the taxes out.

You can name the trust beneficiary of your life insurance policy. The proceeds would then go into the trust to be distributed as you directed. Before doing this, however, married people should ensure that a surviving spouse will have plenty of ready cash in case there is a delay in getting the trust paid out.

Your trust should define what it means to be disabled, requiring a successor trustee to handle your affairs. For example, “I shall be deemed to be disabled when two physicians licensed to practice medicine in my state sign a paper stating that I am disabled and unable to handle my financial affairs.” The same language can be used to determine when your disability has passed.

To change the terms of a living trust, you prepare a written amendment. Don’t scratch in the changes on the trust document; they won’t be accepted. In some states, the amendment has to be signed and, maybe, witnessed just like a will. But in most states, a notarized signature will do.

A married couple should ask an experienced estate-planning lawyer (not a lawyer or insurance agent who is hard-selling trusts) whether they need one trust or two. In community property states, it is common to have a single trust document for all the property; each spouse’s separate property interests are segregated within the trust; at the death of the first spouse, the trust divides into multiple trusts include the title loans.

Granting the Power, Durably

Everyone needs a backup, a person to act for you if you are away, if you are sick, if you get hit by a car and can’t function for a while, or if you grow senile. That means giving someone, a spouse, mate, parent adult child, or trusted friend your power of attorney. A lawyer can get an Atlanta title loan in a jiffy. . It is probably in his word processor and just needs printing out. Young people need a power of attorney as well as the old.

Limited powers of attorney grant narrow right, such as: “Christopher can write checks on my bank account to pay my bills while I am out of the country for six months.” Ordinary powers of attorney give broader powers over your finances. But both limited and ordinary powers expire if you become mentally disabled, however, which is exactly when you need the help the most.

So protect yourself against doomsday by asking a lawyer to draw up a durable power of attorney. It lets someone act for you if you are judged senile or mentally disabled, if you fall into a coma, or if illness or accident damages your brain. A durable power lasts while other powers don’t. As long as you are mentally capable, you can revoke a durable power whenever you like.

The person who holds your power of attorney could, theoretically, exercise it at any time, even if you are healthy. He or she could sell your investments and clean out your bank account. But that is not as easy as it sounds. Banks and brokers normally check on what has happened to you before accepting a power of attorney. Besides, you would not give the power to someone you did not trust.

Be sure to execute copies of the durable power maybe even 10 or more. Some institutions want an original for their files (photocopies won’t do) before they’ll cooperate with the attorney in fact. In many states, you have to execute new durable powers every 4 or 5 years to show that your intention holds. Insurance companies and financial institutions probably won’t honor an old power. A few won’t honor any durable power of attorney at all, or any power more than 6 months old, or any power not written on their own form. In my view, that is harassment, but they sometimes do it and you might be stuck with Atlanta title loan.

Estate Foreclosure

Estate Foreclosure

Estate Foreclosure

The majority of the states limit the mortgagee’s right to a deficiency judgment. Some limitations are procedural. For example, many states impose strict notice requirements and the time limits on the mortgagee. Failure by the mortgagee to comply with these limitations can destroy the right to obtain a deficiency judgment.

Likewise, failure to comply with “one action” rules also can destroy the mortgagee’s right to the deficiency judgment. Under such rules, the mortgagee’s only remedy on default is foreclosure, and he must obtain any deficiency judgment incident to the foreclosure proceeding. Two justifications are often cited for this rule: One is to protect the mortgagor against the multiplicity of actions when the separate actions though theoretically distinct, are so closely connected that normally they can and should be decided in one suit.

The other is to compel a creditor who has taken a mortgage on the land to exhaust his security before attempting to reach any unmortgaged property to satisfy his claim.

Similar restrictions sometimes apply to the power of sale foreclosures. In such situations, the exercise of the power of sale is a condition precedent to a subsequent action at law for a deficiency. Some commentators refer to this restriction as the “security first” principle.

There are also important substantive limitations on deficiency judgments. As a result of the depression of the 1930’s many state enacted “fair value” legislation and most of this legislation is still in force. Fair value statutes usually define the deficiency as the difference between the mortgage debt and the fair value of the foreclosed land, rather than as the difference between the mortgage debt and the foreclosure sale price of the land. Depending on the statute, a court or a jury may determine the fair value. Most of these statutes were designed to deal with depression conditions when foreclosure sales typically yielded nominal amounts. This legislation, however, also assumes that even in a stable economic climate, a forced sale of real estate will yield a price significantly lower than otherwise would be obtained by private sales.

Closely related to the fair value approach are the appraisal statutes used in a few states. This legislation requires the court or the person conducting the foreclosure sale to appoint an appraiser, who determines the value of the property. For example, in south California, a statute reduces the deficiency by the difference between the foreclosure sale price and the appraisal amount.

Anti-Deficiency Legislation

Under the traditional approach followed in many jurisdictions, once the mortgage goes into default and the obligation is accelerated, the mortgagee has two options. The mortgagee may either obtain a judgment on the personal obligation and the enforce it by levying upon any of the mortgagor’s property and, if a deficiency remains, foreclose on the mortgaged real estate for the balance or foreclosure on the real estate first and if the proceeds are insufficient to satisfy the mortgage obligation, obtain a deficiency judgment thereafter. Some jurisdictions following the above approach require the mortgagee to elect one of the two options. The Restatement agrees; see Restatement (Third) of Property (Mortgages 1997). Other states, however, reject this “election of remedies” requirement; the mortgagee is permitted to follow both options simultaneously with the only limitation being that the mortgage obligation may only be satisfied once.

Under the traditional approach, a deficiency judgment is calculated by subtracting the foreclosure sale price from the mortgage obligation. If the foreclosure is judicial, the deficiency judgment is obtained in the same proceeding after the foreclosure sale. Where the foreclosure is by a power of sale, the mortgagee obtains a deficiency judgment by filing a separate judicial action against the mortgagor.

Forced sale even under stable economic conditions, normally will not bring a price that will reflect the reasonable market value of the property if it were marketed outside the foreclosure context. Moreover, in times of several economic downturn, mortgaged property often sells for substantially depressed prices. To make matters worse, mortgagees occasionally purchase at the foreclosure sale for a deflated price, obtain a deficiency judgment and resell the real estate at a profit.

The great depression of the 1930’s, as might be expected, produced a substantial amount of varied state legislation to provide relief for mortgagors. Perhaps best-known were the various moratoria statutes.  Such legislation different from state to state. Some statutes gave courts authority to grant foreclosure postponements on petition of mortgagors in the individual case. Other statutes extended the period of statutory redemption beyond the usual period or stretched out the periods of time in a foreclosure action. Most of this legislation was upheld against federal and state constitutional attack. Constitutional law students are a family with Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413 (1934), which upheld the Minnesota legislation, finding it not to be an unconstitutional impairment of the obligation of contracts.