TELECOM Digest OnLine - Sorted: Re: Who Gets to See the E-mail of the Deceased?

Re: Who Gets to See the E-mail of the Deceased?
11 May 2005 07:32:47 -0700

I still don't think we know the actual details in this particular
case. IMHO, the email holder was being too tight about this, legally
or not (see below). We don't know if the family's "court order" was
from probate or litigation.

Robert Bonomi wrote:

>> Keep in mind that many estates are settled without probate and court
>> orders. Getting that stuff is expensive and not worth it if the
>> estate is small, such as often in the case of a young person.

> (A) That stuff is _not_ expensive. court costs are generally in the very
> low 3 figures, _at_most_.

I am not a lawyer. However, after handling two estates I have a bit
of experience. Many lawyers told me probate is expensive and to be
avoided if possible. Our family was quoted $1,000 in legal fees (ten
years ago) to handle a very simple of estate (no car, no real
property, just some bank accounts). We ended up doing it ourself.

> (B) "informal" settlement works *ONLY*IF* nobody objects. As soon as
> any 'involved party' raises an objection, or demands the formal
> procedures, the informal techniques are no longer a viable option.
> Those who insist on employing them in the face of opposition, are
> _personally_ legally liable for not using the formal procedures.
> If the objection comes from a beneficiary of the estate, or a
> creditor thereof, those who take property from the estate "without
> benefit of formal procedure" can find themselves subject to
> criminal action (for 'theft'), as well as civil suit to recover
> the value of the stolen property.

Basically true. However, the value and contents of the estate plays a
big part of this. If there's real estate or a business involved,
you'll need official documentation to legally transfer titles or sell.
But for an elderly person who say is in a nursing home with little
property left, or a young person killed in the service, there simply
may not be enough assets to even cover the cost of probate.

Anyone can certainly file a civil suit, but the value in question must
be significant to justify the cost of litigation.

On the flip side, sometimes people with substantial estates and duly
executed wills still run into litigation as beneficiaries feel they're
were cheated out of their perceived rightful share. Many estates have
been ruined as litigation dragged on for years.

>> I would presume the family presented a death certificate which is
>> normally issued upon death.

> Which doesn't prove "boo" as regards who is the authorized agent of
> the estate, and the only party legally entitled to access to the
> property of the decedent.

I thought more about it and in some cases a death certificate is all
that is needed. Been there/done that, with the above two estates. I
conducted numerous transactions submitting only the death certificate
or even only a copy of the newspaper's obituary notice.

Certain property by law automatically defaults to someone else in the
event of death, and no probate certificate is necessary. A common
example is joint bank accounts and husband and wife.

> Such a designation has *NOTHING* to do with who obtains _ownership_ of
> any physical property that belongs (belonged) to the decedent. The
> _only_ document that specifies that is a "will" -- and which may, or
> may *not*, take precedence over statutory specifications. (In some
> states, a wife, for example, may "elect against the will", and get the
> statutory share of the estate, regardless of express provisions in
> the will.)

Again, in practice when there is a very modest amount of property at
issue, the above is not closely adhered to. I don't know military
procedure, but given the reality of life risk in military service, I
still presume that they provide soldiers with appropriate
documentation that is acceptable to outsiders.

Naturally I recommend consulting an attorney for such matters. But
like anything else, fees can vary tremendously and getting several
opinions from recommended attorneys is a good idea. Setting up joint
title to some property will be helpful but that has its risks. (In my
state, the joint title saved 50% of the inheritance tax and eased

(But other setups can waste money. I know a fellow who borrowed money
from his mother for his mortgage. He insisted it be recorded. When
she died, that became part of her official estate and the probate
taxes on the mortgage, recording payoff fees, etc., were steep. He
spent $20,000 on legal fees alone and that was 20 years ago).

[TELECOM Digest Editor's Note: When my maternal grandfather died in
the early 1960's my grandmother had us drive her to the bank the next
morning (before any notices got in the papers, etc.) so she could
clean out their safe-deposit box. _After_ she had gone in the vault
room and taken the contents of their box, then on the way out the door
she stopped and mentioned to the bank clerk "you know, my husband
passed away yesterday evening." The bank clerk's response was "well,
I certainly wish you had told me that _before_ you went into the
safety-deposit box." Grandmother replied, "I am sure you do, but it
is too late now." She had been a joint tenant with rights of
survivorship in the box, but did not want to mess around with any
paperwork the bank or taxman might have later requested. PAT]

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