Did you know that approximately 60% of American adults do not have a written estate plan?
What is a Will?
A Will is a legal document containing your written instructions for how your property/assets will be distributed and how your dependents will be cared for in your absence. Your assets may consist of bank accounts, brokerage funds, vehicles, real estate, items of sentimental value, and other personal property.
In a Will-based estate plan, your Last Will and Testament will cover four important points:
1. Who will serve as your Personal Representative/Executor;
2. What powers your Personal Representative/Executor will have;
3. Who will be your beneficiaries (those who will inherit your property); and
4. How your property will be transferred to your beneficiaries.
If you have minor children, your Last Will and Testament will also cover who serves as guardian for your children. There are several types of Wills, including the following:
Self-Proving/Testamentary Will
A self-proving Will, also known as a testamentary Will, is the traditional type of Will with which most people are familiar. It is a formally prepared document that is signed in the presence of witnesses.
Holographic Will
A holographic Will is one that is written by hand, not typed or created on a computer or word processor and without the presence of witnesses. These Wills are only valid in a few states.
Oral Will
Oral wills are spoken testaments given before witnesses. These are not widely recognized by courts due to the strong possibility of fraud, misunderstandings, or mistakes.
What Are the Legal Requirements?
A Will is valid if:
• the Will maker is eighteen years old;
• the Will is in writing;
• the Will is signed by the Will-maker; and
• the Will is witnessed and signed by at least two people in the presence of the Will maker.
What Are the Advantages and Disadvantages of Wills?
Potential Advantages
1. A Will is good for individuals and families who do not have assets that would have to go through the court process called probate, or who are not concerned with avoiding probate.
2. A Will is traditionally less expensive to prepare than a trust-based estate plan.
3. A Will allows you to appoint a guardian to care for your minor children until they become adults.
Possible Disadvantages
1. A Will may not provide sufficient tax planning leaving your estate and/or beneficiaries to pay hefty federal and state estate taxes.
2. A Will may not sufficiently protect your assets from creditors.
3. A Will must go through probate, which can take anywhere from a few months to a couple of years; very expensive; and complex. Probate also lacks privacy, meaning your estate plan will become part of the public court records that anyone can read, including your Last Will and Testament, a list of your beneficiaries and assets, and a breakdown of who’s getting what and how and when they get it.
4. A Will alone does not make any provisions if you should become incapacitated.
5. A Will generally addresses the distribution of the bulk of your assets, however, there are some assets that are not covered by the instructions in your Will such as community property, life insurance payouts, retirement assets, investment accounts that are designated as “transfer on death,” and assets owned jointly by two or more people where the survivor automatically gains ownership (joint tenants with right of survivorship). Don’t let the long list of possible disadvantages of Wills discourage you from estate planning. All of the possible disadvantages listed above can be addressed with other estate planning tools.
How Can I Change or Revoke My Will?
You can always revoke or change your Will before you die. You can change your Will by executing a new Will or by an addition called a “Codicil.” Written changes, such as additions, deletions, comments or marks, on the Will itself may invalidate the Will. Therefore, once signed, a Will should not be altered in any way without the assistance of an estate planning attorney.
Last Will and Testament – An Integral Part of Estate Planning
Executing a Last Will and Testament is the greatest gift you can give your loved ones. When people do not take time to write out their will it creates additional grief for the family. Instead of having a say-so in how your assets are distributed, a judge will decide. The Last Will and Testament is used to appoint an estate administrator, designate beneficiaries to receive assets and personal belongings, express burial preferences, and establish guardianship for minor children. Overall, the last will is the package that ties up loose ends of your life. Without it, others will be left in charge of handling your affairs. Dying intestate (without a Will) creates a terrible burden for your loved ones. If you died today, would anyone know what to do? If not, it is time to create a will. Many options exist for establishing a last will.
Several websites offer downloadable forms that can be filled out and notarized. Office supply stores sell preformatted forms which only require filling in the blanks. Most credit unions, banks, and investment brokers offer estate planning services to their customers. Estate planning can range from executing a simple last will and testament to establishing revocable or irrevocable trusts. Fees range from under $100 to several thousand. Much depends on the value of the estate and services rendered. When individuals own businesses, real estate and valuable assets they should consider using the protection of trusts. The Will is placed inside the trust; keeping assets out of probate and exempt from inheritance tax. Wills must undergo the probate process when not protected through a trust. This process involves validating the will, court confirmation of the estate administrator, paying creditor debts, inventory and appraisal of assets, filing a final tax return, and distributing assets to heirs and beneficiaries.
Trusts are generally reserved for estates valued over $100,000. Smaller estates can utilize techniques to keep assets out of probate. These include establishing beneficiaries on bank accounts, life insurance policies and investment accounts. The average probated estate takes six to nine months to process. Complex estates can take years to settle. Much depends on the court caseload, estate value, and how well family members get along. The probate process provides a platform where heirs can air grievances. If they feel slighted or were disinherited, they can contest the will. This act rarely accomplishes anything more than bankrupting the estate by overinflating legal expenses. Estate planning experts recommend hiring a probate lawyer to administer estates where family dysfunction exists. Family strife is less likely to occur when a lawyer or professional estate planner is involved.
Pitfalls in Do-it-Yourself Estate Planning
With the easy availability of do-it-yourself wills both in print and online, it’s tempting to consider skipping the costly process of working with a probate attorney and taking care of your estate planning needs on your own. It seems like a great deal – grab a cheap do-it-yourself kit off the internet, spend a little of your own time, and save yourself a lot of money overall. Unfortunately, there are several good reasons why estate planning should always be done with the aid of an experienced probate lawyer. Though the services of an attorney may seem expensive at the time, they are, in most cases, a worthwhile investment to make.
The first pitfall with DIY estate planning or will drafting kits is their one size fits all approach. Although such a method greatly simplifies the drafting process, it also means that tailoring the resulting will to your individual needs may be difficult or impossible. In general, the task of estate planning is much more complicated than most people realize; the average man or woman today tends to have many different types and amounts of assets spread out over investments, bank accounts, real estate, trust funds, and more. Dealing with and knowing what to do with these different properties is something which probate attorneys – but not average people – are trained to do.
Advice and Know-how
Another problem with over-the-counter estate planning kits is the lack of personal advice and industry know-how. Though a kit may be able to walk you through the basic steps, it will never have the experience that an attorney would. An experienced legal practitioner can do far more than simply help you write a valid will; he or she can show you ways to reduce the amount of taxes your heirs and beneficiaries have to pay, methods of avoiding costly probate paperwork and court proceedings, and explain the intricacies of using trust funds and exemptions in your asset protection strategy.
Costly Mistakes
Many of the most useful estate planning structures and strategies are heavily regulated by both state and federal law. In some cases, particularly when taxes are involved, precise wording and use of language is required to make a document valid. A simple kit cannot ensure that these exacting documents are drafted correctly; an error now could cost you or your heirs thousands of dollars in the future. In fact, many people find that, by using a DIY estate planning kit, they spend more time and money fixing their mistakes with the help of an attorney than they saved by using the kit in the first place.
The Rights of Heirs-at-Law
An heir-at-law is anyone who’s entitled to inherit from someone who dies without leaving a last will and testament or other estate plans. This status can be an important factor not only in settling an estate but in determining who might be entitled to challenge or contest a will when the deceased does leave one.
Who Is an Heir-at-Law?
Exactly who qualifies as an heir-at-law can depend on where the decedent died and what he owned. The rules are established individually by each state so they can differ a little. Most states’ laws are very similar, however. Heirs-at-law and their rights to inherit are typically decided in an order called “intestate succession.” The more closely related you are to a decedent, the more likely it becomes that you are an heir-at-law.
Surviving Spouses and Children
A surviving spouse is invariably the first in line to inherit if the decedent was married. In most states, she shares the estate with his living children. His grandchildren would be heirs-at-law only if their parents are deceased because a parent’s share typically skips to his child rather than to his siblings—the decedent’s other children. This legal process is known by the legal term “per stirpes,” which literally means “by roots.” Per stirpes, bequests descend to the next generation. They do not move “sideways” to others of the same generation.
Other Relatives—”Collateral Heirs”
The deceased’s parents, siblings, grandparents and other next of kin would inherit only if he left no surviving spouse, children or grandchildren. Intestate succession usually occurs in that order. These people are considered “collateral heirs” because they would only inherit if no more immediate relatives are living.
Finding Unknown Heirs
When it appears that someone has died without any known heirs-at-law, some states require that a special notice be run in the newspaper, alerting individuals to come forward if they believe they are related to the decedent. These people can then file requests with the court for determinations of heirship which would give them a legal right to inherit. Some companies specialize in searching out and identifying next of kin and heirs-at-law, and sometimes a simple review of the decedent’s personal paperwork can impart clues. If no heirs-at-law can be identified, the decedent’s estate would typically “escheat” to the state.2 In other words, the state would receive his property.
Probate Without a Will
Probate is typically required even when someone dies without a will. He still has an estate if he owned any property or assets in his sole name, and probate is the legal process by which that property is transferred into the ownership of living beneficiaries.
Which State’s Rules Apply
In most cases, a deceased person’s heirs-at-law are determined by the intestacy laws of the state in which she lived at the time of her death. But the intestacy laws of another state might apply if she owned real estate or tangible personal property there. That state wouldn’t have jurisdiction over her entire estate, but rather just the particular property that’s located there. That state would determine how the property should be distributed. Sometimes this can result in a different set of beneficiaries or different shares among the same beneficiaries.
Heirs-at-Law and Will Contests
When a decedent does leave a will but glaringly omits someone who would have inherited if he had died intestate, this individual has “standing” to challenge or contest the will in court. Not just anyone can do this—standing means the individual has some financial stake in the estate. This might be the case if the deceased left his entire estate to one child and omitted mention of his other child entirely in his will. An heir-in-law would qualify.
Status as an heir-in-law does not necessarily mean that a lawsuit to overturn the will would be successful. The heir-at-law would also have to establish that the deceased didn’t intentionally omit him from the will, disowning him. An heir-in-law isn’t automatically entitled to inherit when there’s a will that doesn’t mention him, but only if the decedent had died without any will at all or if there are issues with the last will.
A surviving spouse is an exception to this rule. All states prohibit a married individual from disowning his spouse and they have laws in place to make sure she receives her fair share of his estate. She’s always an heir-at-law, but she would not have to contest the will to claim her share. She would have to bring the omission to the attention of the probate court, however, usually by filing a claim.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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