How to Write a Will and Facts You Need To Know

According to some statistics, a high percentage of Americans do not have a written will. Having a will can create peace of mind when used as a legal tool to ensure your preferences are carried out after your death. A well-written, carefully planned will can ease the transition for your loved ones.

The length of a will varies, depending on the amount of assets you hold. Some are a simple one page document; others can be multiple pages to list all items in an estate and individual preferences. Typically, a will should describe the estate; the people who will receive parts of the estate; special instructions about gifts to charity and the care of minor children; and posthumous trusts. Sometimes, a will could also disinherit individuals who might expect to receive part of an estate.

How to Write a Will That is Valid

The validity of a will may depend on the requirements of the state. Generally, most states statues have the same elements which may include:

• You should be at least 18 and mentally capable of writing the will. • A statement attesting that the will is yours. • The will should be typed, computer generated or handwritten. • Provisions that disposes of property and/or appoints guardianship for minors, if applicable. • The will should appoint an executor and have notarized signatures for at least two witnesses.

How to Write a Will with Legal Representation

Generally, state law does not require legal representation for writing a will. However, if you have a large estate or complex issues, hiring an estate planning attorney is recommended. There are many benefits to hiring a lawyer who is familiar with estate law in your state. Legal representation can help to ensure your wishes are carried out correctly.

An attorney can assist you with creating a trust, or help with delicate matters such as disinheriting a relative. Many state laws have specific requirements about what is allowed in a will, including who can legally serve as a personal representative. Hiring an attorney is probably best in these types of situations, since he or she is familiar with state laws.

Keep in mind that hiring an attorney to write a will can be expensive. Most attorneys offer a free initial consultation. However, they may charge a flat fee or hourly rate to prepare your will. Discuss these options during the initial meeting.

A flat fee usually covers document preparation, time to review the documents, and signing. The hourly fee could cost more than a flat fee. The actual charges will vary depending on the attorney. Speak to several different lawyers to get a price range.

How to Write a Will without Legal Representation

If you have a small estate or no minor children, you can write your own will without legal representation. Online software, will templates and instructions are available in do-it-yourself (DIY) kits. The cost for a DIY kit is relatively low, often less than $50. Additional fees would include paying to have the signatures notarized. Another option is to pay $300-$500 to have someone draft a will.

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Grounds for Contesting a Will

The loss of a close one can be distressing enough without then realising that you don't feel the will is correct. There are however procedures in place allowing wills to be challenged in the unfortunate event it is necessary. However doing so can be complex, costly, time consuming, stressful and divide people. It can make a difficult time even harder and for these reasons should perhaps only be given serious consideration in the most pressing of instances. There are three main methods of contesting a will: The Inheritance Act 1975

This is essentially the only way of arguing, under a valid will, that you have not received a rightful share. It may seem inequitable or even disrespectful to be able to disregard some of a deceased individual's final wishes. However the reasoning is that if people really need the money then they should attain it from this source - as opposed to being supported by the taxpayer. Essentially it must be proved that the deceased failed to leave adequate provision for the contester. If this can be demonstrated than the court shall have the power to alter the will to make fair provision for the contester(s) taking all relevant factors into account. After this has been accounted for the remainder will then usually be distributed according to the wishes of the deceased. However those who qualify for free legal information on Contesting a Will. under the Act are limited.

Undue Influence

This is when it appears a will has been created with unfair pressure placed in some form is placed on the creator to draw their will up in a certain way. The most obvious sign which may raise suspicion of this is if an individual receives a surprisingly large proportion of the deceased estate. If undue influence can be proved then usually the court will revoke the will and the rules of intestacy will apply. However it can be a complex and difficult allegation to prove, as soon as suspicions arise it would be prudent to seek the advice of a specialist legal professional.

Testamentary Capacity

This method of challenge essentially alleges that when the deceased made their will that they did so with an unsound mind and that had they been fully capable they would have drawn up their will differently. This course can be a very costly and difficult one to take. Forgeries and setting aside a Judgement?

Other ways of challenging a will include proving it was a forgery, which again can be difficult to show, often a handwriting expert will be required. Alternatively a will can be set aside if it was not drawn up properly to begin with, this is a far simpler means of challenging a will and should probably be looked into before contemplating the more complex routes. However the effect of both these methods is to invoke the intestacy rules and the deceased estate will pass down to relatives in a specified order and proportion.

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Will My Sister's Loan From Dad Be Deducted From Her Inheritance?

When a child borrows money from a parent, especially a large amount, it is not uncommon for the other siblings to be jealous or at least curious about the family loan. However, if the loan goes unpaid before the death of the parent, this can certainly change the how the siblings feel about the money.

Angie always had financial difficulties and had asked Dad to help bail her out. For a while, she ran up credit card bills and six years ago Dad gave her $20,000 to clear up her debts.

Later, Angie married "Mr. Wrong." After a year she got a divorce and Dad gave her another $40,000 to get a new house and restart her life.

The four other brothers and sisters were not happy that Angie used Dad like an ATM for her financial needs. However, Dad obviously wanted to help her so the other children didn't say anything to Dad.

Two months ago Dad died. Angie showed up after the funeral and began asking to get more money because she wanted to buy a new car.

That started a huge argument among the siblings.

Among other things one brother said the $60,000 she had gotten from Dad should be deducted from her share of the inheritance. Sister Marjorie who was appointed personal representative of Dad's estate was unsure how to proceed.

Under probate law in Minnesota, it is possible for the personal representative to exercise the "Right of Retainer." What this means is that if the money Angie got was a loan or an advance payment of her inheritance, the amount could be deducted from the share Angie would get in the probate proceeding.

It is always best if Dad had wanted the money to be considered a loan or advancement that he should have gotten a promissory note from Angie or that Dad would change his Will to mention that any amount that had not been repaid during his lifetime would reduce her inheritance.

That, however, is perhaps what perfect families do in a perfect world.

It is more common that Dad or Angie or the rest of the family has an "unspoken understanding" that it was a loan and Angie should pay it back to Dad or to Dad's Estate after he dies.

However, family members can have a different perception of it after Dad's death.

The issue of whether Dad intended it as a loan or a gift can be decided in litigation before the probate court when it comes time to distribute the assets of the estate.

If Angie claims the $60,000 was a gift, under Minnesota law, she would have to prove by "clear and convincing" evidence that Dad intended to give it to her with no strings attached. A better way is for the family to get clarification of how the $60,000 should be treated at the time the money is paid or by Dad spelling it out in his estate plan.

Whether it comes down to spelling it out in Dad's estate plans or sorting it out in probate litigation, the family will need a probate and estate planning attorney.

It probably will not surprise anyone that it is much less expensive for the family to spell it out in the estate plan rather than through litigation about what was the intention of the decedent.

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Wills: Choosing a Guardian for Your Children

A will is where you can directly state how you want your property to be distributed and to whom they will go. But it also has another advantage: You can name who you want your children's guardian to be in your will.

A guardian has to be someone you trust, someone you know will take care of your children and who will raise them until they are of legal age, when the guardianship legally ends. This person has to be someone you can entrust your children's lives to. It is also better to choose an alternate guardian should the original guardian be unable to take responsibility.

Obviously choosing a guardian has to be of your own decision or of you and your spouse's together. Normally, the surviving spouse or parent automatically becomes the guardian (if living in the same household), but it can be someone else if that is what you would prefer, as long as it is specified in your will.

If the parents are divorced, the parent with legal custody of the children has the right to choose a guardian. However, if the person chosen is not the biological parent, the court usually does not abide by the parent's decision.

However, just because you have named them in the will does not mean that he/she will automatically become your children's guardian. The court must approve of your decision first, to see who is fit and able to do the job and who can best take care of your children.

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Newlywed? Consider These Estate Planning Tips

Marriage marks a huge milestone, and it involves countless adjustments in many areas of your life. One area that newlyweds often overlook is estate planning. When you're embarking on a new phase in your life, the last thing you want to think about is what would happen if one of you passed away or became disabled. However, laying the right groundwork now can help you ensure your family is taken care of in the future. Here are a few tips:

• If you don't have Wills, now is the time for each of you to put one in place. This allows you to provide for each other in the way that you think is best, instead of subjecting your estate to the rules imposed by state law. • Take a look at the property each of you owns. It's important for you to know exactly what you own, and how your property is titled. For example, property that is co-owned as Joint Tenants With Right of Survivorship is not affected by your Will because it is not subject to probate. Instead, when one owner passes away, the property automatically passes to the surviving owner. • Review your beneficiary designations. You'll want to double-check your retirement accounts, life insurance policies and other assets for which you've designated a beneficiary. Is the current beneficiary still the person you want the asset to go to? If not, now is the time to make a change. Assets for whom you've designated a beneficiary are not subject to probate, so your Will does not control who receives them. • If you don't have an incapacity plan, you'll want to put one in place. Your incapacity plan is a group of documents that control who will make medical and financial decisions on your behalf in the event that you're ill or severely injured and can't take care of yourself. Without it, your spouse may need to go to court in order to get the right to take care of you and your finances in the event that you become incapacitated.

Your estate planning attorney can help you review your assets, make an assessment of your planning goals and needs, and put together a plan that's tailored to you and your spouse.

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Things You Should Never Put in Your Will

A will is a vital estate planning document, and allows you to distribute your assets and property according to your wishes. At a minimum everyone should have a will, even if you believe you do not have many assets. It is a common misconception that only rich people need estate plans. A will has a number of limitations you may not be aware of. However, there are several items that should NOT be included in a will:

Property held in a living trust or joint tenancy - property deeded to a living trust cannot be willed to someone else, and a will cannot change the right of survivorship in joint tenancy, which passes to the joint tenant by law. Don't let the legalese scare you. Let an attorney help you ensure that any property you leave is handled in the way you want.

Accounts with designated beneficiaries - financial accounts and life insurance proceeds go to beneficiaries who are designated by you via a designated beneficiary form, and cannot be given to someone else through a will.

Contingency gifts - leaving assets that are contingent on the beneficiary performing a duty or act (like marrying or attending college) is not always legal. Generally speaking, you cannot "manage from the grave" by making an inheritance contingent on someone getting married, changing their religion, etc. Provisions for those with special needs - this should be done via a special needs trust.

Provisions for pets - pets do not have the legal ability to own property, so consider establishing a pet trust to care for your pet(s). Did you know that you can leave money for the caretaker of your pet and of course choose who or what organization you would like to care for your pet.

Funeral instructions - since a will may not be read until after the funeral, leave instructions for your funeral arrangements in a letter of instruction or discuss your wishes with loved ones. It is also advisable to get funeral insurance. Save your loved ones from the hassle of chasing money immediately in the aftermath of your death.

Many of the items above can be addressed in a trust designed by your attorney. It also shows that "wills in a box" software many times will not ensure your wishes are abided by. If you'd like to learn more about establishing your personal estate plan, call an attorney today.

To Your Health, Wealth & Happiness,

Walter H. Bentley III http://www.wbentleylaw.com

New Year's Resolution: Make or Revise Your Will   How Inheritance Claims Can Prove Very Difficult   10 Top Terms Used In Wills and Will Writing   Estate Planning: Secure Your Loved Ones' Futures   An Intro Into Properties Planning   Special Needs Trusts - What Are They?