The Will is a formal legal document which disposes of property after a person has died. When a man makes a Will he is known as a "testator" and in the case of a woman, she is called a "testatrix". A Will allows the maker to control what happens to his or her property and affairs, and it allows you to name an agent for your affairs, and a guardian for your children, if needed. Both a man and a woman need at the minimum, a Will, as one document does not suffice for a man and wife. The person named in a Will to administer the estate after the death of the testator, is called an Executor (if a man) or Executrix (if a woman is named).
A Will, simply put is a type of letter to a judge. The Will tells the judge who you are, and what you have accumulated during your lifetime in your estate. It then tells the judge to which surviving people you want the court to see to it, get certain items of your property and other assets after your death. A Will only has effect after the death of the person making it. This is an important difference between a Will and a Living Trust. Living Trusts are discussed at length on other pages of this website.
A person who dies without a Will, is said to have died "intestate". Without a Will, the probate court will "dig" through all of your property and other affairs and distribute assets in accordance with state laws, called Intestate Succession. These statutes exist in virtually every state, and are designed to distribute your property the way you might have wanted, had you prepared a Will, before you died. The problem is that most often, property may go where you would have least wanted. A Will must be properly drafted and be in full compliance with state law in order to be effective. Always consult with a qualified attorney to prepare your
Will, or any part of your Estate Plan. Do not rely on document mills, or prepared documents for these important decisions.
When do You need a Will?
Do I need a Will?
Can I change my Will?
How do I prepare and store my Will?
If you do not provide for the distribution of your estate by Will or by a Living Trust, drafted by a competent Attorney, the assets of your estate could be distributed under the laws of intestate succession.
Laws of Intestate Succession vary significantly from state-to-state. However, as a general rule, in a community property state, these laws provide that your share of the community property will go to your spouse, while your separate property may be split between your spouse and your children. If you have no spouse or children, then your property generally goes to your closest relatives; starting with your mother and father. If they are not living, then property will go to brothers and sisters, and so on. However, bear in mind that all of your property going to your surviving spouse which could result in significant estate taxes if your
net assets exceed the lifetime estate tax exemption, which is presently set at $1,000,000. If your net assets are, or at any time in the future could reach $1,000,000 dollars, a Living Trust is a better alternative. A trust allows for personalized estate tax planning to reduce or completely eliminate any estate tax liability by utilizing the maximum of both lifetime exemptions. It is important that you plan for your ESTATE before your STATE LAW does.
More importantly, if your property goes directly to minor children, this can create a number of serious problems. First, courts usually require all assets inherited by minors be placed in "blocked" trust accounts until the minor reaches eighteen (18) years old. To sell the family house, distribute money, or make any other changes require a court order. Many investing options, such as the stock market, are not allowed by the courts in such situations. Also, many people do not feel comfortable having children receive an inheritance at age eighteen (18) years old. Imagine what an 18 year old might do with $100,000.00 or more in cash;
a little more maturity is usually preferred.
If you have minor children, an option is to consider making Living Trust. This is more preferable, than what is called a "Testamentary Trust". Trust provisions contained in a Will are called testamentary trusts. However, testamentary trust provisions are administered under the jurisdiction of the probate court, as part of probating the Will. Therefore such trust provisions require accountings to be filed with the court. This is an important consideration in any Will, in that the Will must be probated with the Court. After filing the Will, the Inventory and Appraisement is the next document filed. These documents make public each and every asset you own, where the asset is located and what it is worth. There is no privacy in a probate proceeding.
However, when a Living Trust is used in your Estate Plan, the preparation of these documents allows a tremendous degree of
latitude. For example, there is no administration by the Courts, allowing for privacy of your estate and affairs; also, you can leave money to charities and name your choice of guardian for your children. These are only a few examples of the benefits of a Living Trust.
When death occurs
What is the difference between dying with and without a Will?
What are the consequences of dying without a Will?
After death, it is important to determine what your assets are and where they are located. This is because an Inventory and Appraisement of all assets in the Estate must be filed with the Court when a Will is probated. If you did a Will, it needs to be probated, however, with a Living Trust, there is no probate. "Probate" is a court proceeding in which the court verifies that the Will is genuine, confirms that debts have been paid, and distributes property to heirs according to the terms of the Will. Probating a Will normally takes 8 to 12 months, but these proceedings in larger estates can last up to 2 years. For example, if the estate requires the sale of real property or other complications, the probate can last much longer. While an estate is in probate, the heirs are not given anything. They obtain no distribution of monies, bonds, stocks or other assets, and may need court permission to even live in a residence belonging to the estate.
However, if you prepared a Living Trust rather than a Will, before death, there is NO probate proceeding in court. While titles to real and personal property (houses, boats, cars, autos, etc.) need to be transferred according to the terms of the trust, a court proceeding is not required. Every aspect of your Estate, the value and location of assets, all remain private. It is particularly important that title to real property be transfer properly and that any claims for exemption from property tax increases be presented to the county. Failure to do so may result in higher property taxes or a "cloud on title" to the real property. For more
information about how to probate a Will or transfer property pursuant to a Living Trust after death, contact Affiliated Legal Services, Inc.
Does A surviving spouse Have Rights?
A surviving spouse has various rights; including a priority over other relatives when no Will has been left. Other rights of the survivor are discussed below.
In some cases the surviving spouse can avoid probate if property was held by the survivor spouse and the deceased spouse in Joint Tenancy with Right of Survivorship or as Community Property with Right of Survivorship. Jointly held property does not require a full probate proceeding. Joint tenancy property can be transferred to the surviving spouse with a special affidavit prepared and filed by Affiliated Legal Services, Inc. However, holding property in Joint Tenancy creates other risks, and is NOT a good idea to use as an Estate Planning device.
Community property can be transferred to the surviving spouse by way of obtaining a "Community Property Set Aside", from the court. When a full probate proceeding is required, the surviving spouse can obtain a family allowance for support during the probate process. In addition, the surviving spouse has the right to be the administrator of an estate where no Will was left by the decedent and a spouse has priority to act in these capacities over other relatives.
Probate of the estate
Exactly what is probate and what does it involve?
Are there costs and fees associated with a probate?
Does probate effect the payment of debts or taxes?
Probate is a legal term for the court procedure of finalizing the affairs of a person who had died and left a Will. The Executor (or Executrix) named in the Will begins the probate process by filing the original Will with the court, and asking the court to issue Letters Testamentary. These "letters" are not really "letters" at all. They are court orders giving the executor authority to act for the Estate. Step-by-step procedures dictated by state law are required during the probate of an estate. Due to the complex nature of any probate proceeding, the executor usually retains an attorney to assist in the handling of the deceased's estate.
When do heirs receive the assets?
Does probate affect the timing of when heirs receive assets?
When a person dies, with or without a Will, and the estate is probated, the heirs will usually not receive any property until the court probate action has been completed and an Order of Final Distribution is approved by the judge. This can take from several months to several years depending on the complexity of the estate. Timing can be effected by notification period requirements under state law.
If there is property in the estate, the administrator or executor generally must charge market rent to whoever lives there until the property is actually distributed by the court to the heir or heirs. Some probates can take longer if there are complications such as a Contest of the Will in which claims and debts can be litigated or disputes with the IRS regarding taxes, or the sale of property arise. However, if the deceased had a Living Trust prepared probate is avoided, and the delay in transferring the property to heirs, or using it for their benefit, is minimal, if there is any delay at all.
Will contests
What results in a Will being contested?
What can you do to avoid your Will being contested?
A Last Will and Testament can be challenged by relatives or beneficiaries. Challenges to a Will are called Will Contests. There are generally four reasons for such a contest to a Will; First: on the grounds that the deceased was incompetent when he or she made the will, Second: that the deceased was acting under undue influence or fraud when he or she made the will, Third: that the will was improperly executed under the requirements of state law, or Forth: that there is a later valid Will or Codicil.
If a challenge to a Will is successfully made, all or part of the Will may be disregarded by a court. If the contest is unsuccessful, the persons contesting the will usually will not receive anything from the estate or will receive only one dollar ($1.00) based on standard "no contest clauses", which are typically included in Wills. However, some legal actions are not considered to be "contests". If an heir or relative brings to the attention of the court a later dated version of a Will or a Codicil, he or she believes is genuine, that person may not lose the right to inherit. In order to contest a will, a petition is filed with the probate court within the
time limit, and stating the grounds for the contest.
The more closely a Will has followed or complied with legal requirements, the less likely it is that a Will contest will succeed, but it may still be brought. Updating your Will periodically can help avoid contests, as will full compliance with state law formalities. A Will is updated in one of two ways; either having an entirely new Will drafted, or having a Codicil prepared. A "no-contest" clause, can be included as well. This is a provision in a Will that disinherits anyone who challenges the Will. However, some courts will not honor these provisions. Whenever you move from state to state, or every four to five years, at least, a Will should be reviewed by a competent Attorney to make sure that it is up to date and in compliance with all legal formalities.
