Estate planning is important, but there are many misconceptions about how wills and other estate planning documents work. Don’t let unfamiliarity stop you from properly planning your estate. Most people understand the necessity of having a last will. Even if you’re young and just starting out, you have some assets, so it’s important to have a last will. As you acquire more assets or start a family, the importance of having a will grows. Financial and legal experts recommend basic estate planning for everyone, but there are many misconceptions about how wills and other estate planning documents work. Don’t let unfamiliarity stop you from properly planning your estate. Here are some frequently asked questions and their answers to better acquaint you with the estate planning process.
What Happens If A Person Dies Without A Last Will?
When a person passes away without a last will, the person’s assets are probated or passed through the courts for distribution according to the laws of intestacy. In other words, the deceased person’s assets will be distributed according to the laws of the state—not necessarily according to the deceased’s wishes. The laws of each state vary, but the money and other assets typically pass to the spouse first. For example, in Utah all the property acquired during the marriage passes completely to the spouse. Any property acquired before the marriage or inherited is split between the spouse and any children. If a person dies without a living spouse, the estate passes to the children, if any, equally. If there are no children and no spouse, but living parents, the estate passes to the parents. Generally, the state will attempt to find any living relatives and pass the estate to them. In the event that there are no blood relatives, the estate passes entirely to the state.
What Happens After Someone Who Has A Last Will Passes Away?
The probate court disposes of the assets in accordance with the last will and the law.
Does A Person Have To Have A Minimum Amount Of Assets To Create A Last Will?
No—a person can create a last will to dispose of assets worth $10 or $10 million. Of course, the distribution of those assets can have tax implications. For that reason, it is important that you understand how inheritance will be taxed as you make your estate planning decisions. It is often wise to consult with estate planning professionals, especially for large or complicated estates.
What Is The Difference Between A Living Will And A Last Will?
The basic difference is that a last will is used to dispose of assets after death. A living will can be used to provide health care instructions in advance, such as whether or not life support is desired.
What Are The Main Benefits Of A Living Trust Vs. A Last Will?
A last will’s main benefit is its simplicity. Anyone can write a last will. The drawback is that your family members may have to wait months or even years until your property goes through the courts and is distributed. A living trust, on the other hand, can be used to transfer property and assets to beneficiaries without going through the probate process. This can save years of time and thousands in fees. Also, it keeps your estate private, whereas a last will, once probated, will become public record. People often use a last will and a living trust together. A last will can be used in conjunction with a living trust to name guardians for minors and express final wishes not otherwise captured in a living trust.
How Do I Decide What’s Best For Me?
As you can see, wills are not necessarily complicated. They are actually among the simplest legal documents. Whether or not a will is wholly adequate for your estate planning needs depends on your individual circumstances. If you’re unsure what you need to protect your family, consult a lawyer. The most important thing is that you don’t neglect planning your estate. It’s the best way to protect your loved ones and make sure your assets are distributed according to your wishes.
What Is The Purpose Of Preparing A Will?
A will is a legally binding document that identifies who should inherit a person’s property after they die. Recipients often include a spouse, children, grandchildren or a charitable organization. Many wills also contain a provision that names a guardian to care for minor children. A person that makes a will is called a testator.
What Happens To My Property And My Children If I Die Without Preparing A Will?
If a person dies without a will or another legal distribution device, a state’s laws of intestate succession govern inheritance rights. Typically, a spouse (or in some states a domestic partner) and children are first in line to inherit a decedent’s property. If the deceased did not have a spouse or children, close relatives like parents, siblings, and grandparents will inherit the property. If the decedent has no relatives that qualify under a state’s intestate succession laws, the state receives the property. If a parent of minor children dies without a will and the other parent is unable to provide care, the state determines who will become the guardian of the children and the property they inherit.
Do I Need A Lawyer To Create A Valid Will?
No. State laws do not require the assistance of a lawyer when preparing a will. Because most wills only require instructions for the distribution of property and the naming of a guardian for minor children, most people can create a simple will by using software, ready-made forms, or instructions from a book.
Can I Make A Handwritten Will?
It depends on whether a state’s law recognizes a handwritten will. In about half of the states, a person may create a handwritten will, also called a “holographic” will. Unlike typed and computer-printed wills, witnesses are unnecessary for holographic wills. Some states require that the testator handwrite the entire holographic will, including the provisions, the date, and the signature. Other states are more lenient the testator may use a fill-in-the-blank document if it contains handwritten portions, a signature, and a date. Handwritten wills, however, may create complications. Many probate courts are hesitant to recognize the validity of these wills since they are difficult to verify.
How Do I Make A Will Valid?
When preparing a will, most states require the following elements:
The testator should adhere to the following guidelines when signing a will and selecting witnesses:
Can I Name A Guardian For My Children In My Will?
Yes. A will can name a “personal guardian” to care for minor children if both parents are deceased or if the surviving parent is unable to care for the children. The personal guardian will have legal guardianship over the minor children until they reach the age of 18.
Can I Disinherit My Spouse?
In community property states, a spouse is legally entitled to half of the property acquired or earned during the marriage. While a married person may leave their half of the community property to someone other than their spouse, they may not dispose of the spouse’s share of the community property. In states where common law governs inheritance laws, a person may choose to disinherit a spouse through a will. However, common law states protect the surviving spouse from complete disinheritance by granting the right of the spouse to claim some portion of the deceased spouse’s property by going to court.
How Do I Revise My Will?
A testator can change a will by preparing a new will or by adding an addition called a codicil. When changes are substantive, revoking a will and starting over may be easier. An express statement in the new will of the revocation of all prior wills legally revokes a will. Minor changes, such as the addition of a new provision or the removal of a beneficiary, are appropriate changes for a codicil.
What Happens If I Do Not Have A Will?
When a person dies without making a Will (intestate) strict rules come into operation dealing with who may act as the personal representative (the person responsible for administering the estate including obtaining valuations, paying any tax and distributing the estate) and who will be entitled to receive the assets you own.
As a business owner there could be many obstacles in enabling the business to continue to be run as you would want.
The Intestacy Rules
How Can These Rules Affect Me?
Why Should A Solicitor Draft My Will?
The language of Wills can be confusing as it is formed on historical precedents. Whilst Wills can be bought “off the shelf” we have seen that on occasion these result in difficulties for those intended to benefit. Examples include failing to ensure that the Will is properly executed, and failing to appoint an executor to administer the estate. These problems can result in additional expense in trying to obtain the Grant of Probate.
In comparison, solicitors’ belong to a regulated profession and are insured in the rare case of something going wrong. Solicitors can also hold the original or a copy of a Will, ensuring that it can be safely kept and easily located. A poorly drafted Will can result in additional and unnecessary expense and potential disputes among beneficiaries. A professionally drafted Will should be seen as the right safeguard for your family’s future, while providing you with peace of mind.
What is involved in making a Will?
What If I Want To Exclude Someone From My Will?
In making a Will you are entitled to leave your Estate to whomever you want, but certain legislation can restrict these wishes. The Inheritance (Provision for Family and Dependents) Act 1975 allows certain specified groups of people to claim against an estate if it is deemed that the Will has not made reasonable financial provision for them.
The categories are:-
What Happens If A Claim Is Successful?
The court has the power to set aside a Will and make such provision for the person making the claim as it considers reasonable. The courts have taken a general view that adult children who were not financially dependent upon the deceased prior to the date of death should not necessarily receive any benefit from an estate where they have been excluded, but each case will turn on its own facts and consideration perhaps should be given to making a gift to such a beneficiary but if not then it is always advisable to make a separate statement which can be used as evidence should a claim be made setting out the reasons why, for example, an adult child has been excluded as a beneficiary.