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Wills
FREQUENTLY ASKED QUESTIONS
What if I don't have a will?
Answer: If there is no Will, the property is
distributed according to the state law of intestacy and not necessarily as
desired by the decedent.
What are some reasons to have a will?
Answer:
1. Guardianship: A
guardian for your children can be chosen by you, not the court
2. Money Saved: Money can
be saved by your estate by waiving bond provisions that could be required by the
court
3. Property to Minors: You
can avoid assets going directly to minors (there might need to be court
supervision for the sale of these assets)
4. Appointment of
Executor: You can determine who will take care of assets and their
distribution
Who gets my property if I don't have a
will?
Answer: Generally speaking-
1. Spouse, no children: To spouse
2. Spouse, children: Up to a certain amount to spouse, after
that amount split between children and spouse
3. No Spouse, no children:
To parents, if none, then sibling.
4.
No Spouse, children: To children
Do I need a Will?
Answer:
1. If you have minor
children: Definitely.
2. If don't have
minor children: Probably, unless your answer is no to the following:
a. Do your personal wishes fall in line with the laws of
intestacy?
b. Do you wish to choose your personal representative? Someone must
preserve, gather and distribute your assets. Sometimes an independent 3rd party
can be appointed by the court (i.e. another attorney) and be paid from
estate funds
How long does a will last?
Answer: A properly drawn and executed will is generally effective until it
is changed or revoked
Am I required to leave my spouse
anything?
Answer: Yes to a point. Your spouse is
entitled to money up to a certain amount and then a portion of the remaining
amount.
Am I required to leave my children
anything?
Answer: No
If I am married, do we get separate
wills?
Answer: Yes
Can I change or revoke my will?
Answer: Yes
When should I change my will?
Answer: Usually when:
1. There is a change in
circumstances;
2. You wish to change
the names of Executors, Guardians or Trustees; and
3. You wish to add or
remove someone from the will
Who should I appoint as Executor?
Answer: The Executor (or Executrix if a woman) should have common sense and
good judgment. Geographical proximity to the probate court and the decedent's
property (especially real estate) should be considered as well. The Executor may
hire lawyers, accountants and other professionals
What are some typical excuses?
Answer:
1. "My kids will respect my
wishes"-It is possible that their present or future spouses could
be a problem instead.
2. "I want my property to go
to my spouse anyway"- Your property might not just go to your spouse. It may
have to be split with your children.
The problem is that an independent person might
have to be appointed to oversee the children's interests (if they are minors).
That means that person might have to approve the sale of assets (like your
house) which will cost money and prevent your spouse from making independent
decisions.
What is Probate?
Answer: This applies when there is a will.
It is here that final debts are settled, and legal title to property is formally
passed from the decedent to his/her heirs. It is initiated in the county of the
decedent's legal residence at death. Usually, the first step is taken by the
person named as Executor, or other interested person who has the original Will.
When there is no will, the process is called Administration
3 Basic Steps:
1. Collection, inventory and appraisal of all assets that are subject to
probate;
2. Payment of taxes and creditors;
3. Formal transfer of estate property according to the Will, or by the state
laws of intestate succession, if there is no Will.
What about computer generated forms?
Answer: Typical problems:
1. Most of these forms
are not state specific.
2. It is possible that
the proper procedures might not be followed (such as improper individuals being
witnesses.
3. There is an affidavit
which can avoid the witnesses having to appear in court after your death (this
affidavit can only be used when an attorney supervises the will)
4. Your wishes might not
be properly reflected
What other documents are part of an
Estate Plan?
Answer:
1. Power of Attorney-Allows you to give authority to another to manage your
financial and legal affairs on your behalf. It can effective immediately
or only in the event of a disability (A springing power of attorney)
a. Durable Power of Attorney-Effective immediately.
Survives disability
b. Springing Power of Attorney-Only effective or
"springs", into effect upon the happening of a particular event.
Note: A "Springing Power of
Attorney" does have drawbacks- There must be a formal determination of
disability. At best, this means at least a short delay and expense. At worst,
there might be uncertainty, disagreement or squabbling among doctors and/or
family over the degree of the principal's disability. It is good if you
feel uncomfortable allowing people to make
decisions for you while you are still healthy.
If there is no POA in effect, a
court proceeding and the appointment of a Guardian Ad
Litem will often be
required
Many "do it yourself" forms are not "durable" and
become invalid precisely when they are
most needed - at the time you become
unable to act for him/herself.
2. Health Care Proxy-Allows you to appoint another person to make health
care decisions if you should lack the ability or capacity to make these
decisions yourself.
Even if a couple is married or parent-adult child relationship exists, there is no
automatic
right to act on behalf of the respective spouse or child.
3. Living Will-Allows you to state your wishes about withholding or
withdrawing life-sustaining treatments that prolong the process of dying.
It is a good back-up for a Health Care
Proxy because it is clear and convincing proof as to
what your wishes are, can
be used even if your health care agent is unavailable, and can be honored by
other states that do not honor the Health Care Proxy.
