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

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Having a Will Affects Your Family

So most of us know what a will is: a legal document wherein you can state how you want your assets and property to be distributed and who you want your beneficiaries to be. However, a lot of people seem to take the importance of having a will quite lightly, especially if you are married and you have children. So it is important that you know all the basic information when it comes to having a will - and how it will affect you and your family, especially your children.

It is usually not the case that the surviving spouse will inherit all of the diseased person's property and assets; this is just a false belief of most people. According to the law, the surviving spouse will only get about one-third to one-half of the property and the children will get the remainder. However, it is still important to specify the distributions to your children so that they will be able to get their rightful portion of the inheritance.

If you have children but you are single, then your entire property will go directly to your children, as stated in the state law. However, to make sure that your ex-spouse or anyone else does not try to usurp the control over the children's inheritance, then you had better name a person you trust to take charge of your children's affairs, in order for them to get their fair share of the property and estate.

However, your surviving spouse may renounce your will and instead propose that they take a specific share of property as supported by the state law. In order for this to be avoided, you should create a will and specifically state how you want your property to be handled after your death. It would also be better to know the state law to avoid misunderstanding and miscommunication. If you want to protect your children's rights and if you want them to get their fair share of the inheritance, having a will is very important.

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What Do You Mean Probate?

A couple of years ago, a client came into my office trying to figure out how to transfer the title of their deceased father's house into that client's name. The father didn't have a Will or any resemblance of an estate plan, so I kept asking questions. It turned out the father had another son who they didn't talk to anymore and quite a bit of furniture and other household goods. While it was a pretty modest estate the house had to be sold to help pay for the probate expenses, it was going to take at least 9 months before everything was going to be resolved, and this was all based on the hope that his brother was going to actually cooperate, which rarely happens.

On my last blog I made some references to "non-probate planning," without really defining probate. Simply put, probate is the department in the courts that deals with passing property to heirs at a person's death. However, the process itself is not as simple as the definition. There are a multitude of steps and rules that need to be followed. Is there a Will? What property is passing through the will? Who gets what? What if two of the heirs want the same piece of property? Is there enough money in the estate to pay the expenses, or will the heirs have to pony up their own money? The list of questions goes on and on and rarely is the answer simple. Here are a few of the more common questions I get. If any of this relates to you, make sure you talk to an attorney before acting. This is only generic advice, and may not directly apply to your situation.

When my parent dies am I responsible to pay off their debts? Basically, the answer is no. The only way you should pay any debts off or agree to pay debts off of the parent is if you were already obligated to pay off that debt to begin with. Otherwise, those should be dealt with accordingly when settling the probate estate.

Should I open up a probate estate if there's more debt than assets? Probably. This answer depends on the situation (type of debt, type of property, etc.). The ultimate goal in these estates is to maximize the value of the assets to pass to the heirs while still paying off the necessary creditors pursuant to what the law provides.

If there is a Will, does that mean the property does not have to go through probate? No. This is a very common misconception. First off, everyone does need a Will. The Will provides a safety net in the event part of the person's estate plan is not executed accordingly, is not modified when a triggering event occurs, or some extraneous event causes a probate case to be opened by a 3rd party (i.e. creditor, disinherited heir, etc.). However, the Will does not avoid probate.

The good news is that probate is completely avoidable, and planning to do so is one of the essential elements of every estate plan I put together for my clients. There are quite a few methods that can be used, and some are better than others. The key elements to having an effective non-probate plan are to implement your plan immediately after you execute the rest of your estate planning documents; review and update it when necessary; and make sure it accurately reflects your chosen estate plan.

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Can I Include Funeral Plans/Body Arrangements In My Will?

The simple answer to this is yes. If the funeral arrangements are complicated, it should be written out in details as to the instructions you would like to leave so your executors know exactly what you want. The Will can then state your preference as to whether you would like to be buried or cremated, or where you would like to be buried or cremated and if you want your ashes scattered or buried etc... If there are any particular arrangements that you would like to make, whether you wish to be buried in a particular place then all these wishes should be set out clearly in your Will.

Many people express their wishes as to what they would like to have happen to their body in their Will. Many ask for their body to be used after death for medical research. Bodies that are donated in this way are used by doctors and medical students. Medical students benefit from the bodies donated in this way to help with their studying and for research into the structure and function of the normal human body. If you would wish to do this then drafting your Will in accordance to these wishes is essential. If this is not possible, it is advisable (sometimes it is appropriate to do both) to make arrangements with your chosen medical school or your local hospital direct. Medical schools and hospitals will provide the necessary documentation and a contact address of your executors. It is therefore advisable to let your executors know that you have made these specific arrangements; therefore they will be able to act quickly in the event of your death.

Organ transplants, such as kidney, liver, heart and heart-lung transplants have now become routine operations and the process is developing every year. In your Will you can state whether you would like to leave specific organs to be used for transplants.

If you want to avoid a situation where you have a terminal illness or severally incapacitated and not able to refuse treatment that is keeping you alive, you can make a document called a living Will which is a document that expresses your wishes in the event of you becoming terminally ill or severally incapacitated. A living will can express your views and wishes on receiving treatment that might ease your suffering even though it would not prolong your life. It can also state your doctors to either withhold or withdraw certain treatment that could keep you alive, such as artificial nutrition and hydration.

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Wills and Life Estates

So what exactly is a life estate?

A life estate is a piece of property. Basically, if you own a life estate, you own that particular piece of property, usually a house and its contents, for the entire span of your life. However, you do not own it completely; it is not totally titled to you. Seems confusing?

Let's have an example. A widow wishes to remarry, and she and her new husband have decided to move into her house. However, she has children from her first marriage, and she wants to leave the house to them after she dies, not to her second husband and his family. This does not mean that the second husband cannot stay and live in her house. It just means that the house will not be inherited by the husband if she dies before he does.

The second husband will get a life estate in the house. He can live there and stay there for the entire span of his life, even if the widow dies before he does. He has complete liberty to do whatever he wants in and with the house, and while he has the responsibility of maintaining it and keeping it in good condition, he is not entitled to sell it to someone else. However, though he is entitled to the house, it is only for the span of his life. When he dies, the house will be inherited by the widow's children, or by whoever she wishes it to go to.

A life estate can be created in a will, and it can also be created through a property deed, a trust, or pre-nuptial agreement. However, if you wish to make life estate arrangements, it is best to consult a lawyer than to do it on your own. You don't want to regret your decision if something wrong happens or your wishes are not followed, especially because a lot is at stake.

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What Are Estate Taxes and Will They Apply to My Last Will and Testament?

Estate taxes are one of the most hotly debated tax law subjects today. Essentially what happens is that when you pass on your estate will go to your beneficiaries and heirs subject to your Last Will and Testament. However, your beneficiaries and heirs will have to pay tax on the portion of the estate that they receive. This is a tax that occurs not only at the federal level but also at the state level as well. One of the instances where the tax will actually not apply is when your entire estate goes straight to your spouse without going to anyone else. This is specifically an exception that is implanted into the tax law in order to have the surviving spouse not subject to tax. In 2010, the tax was actually completely repealed but it is to come back in 2011 as such the estates will again be subject to this tax.

Thus, on a general level the estate will be subject to estate taxes unless the entire estate goes to the surviving spouse. One of the ways that you can actually reduce the amount of estate taxes that you pay is to have an attorney prepare your Last Will and Testament. What they can do is actually utilize the latest in tax law provisions in order to increase your tax savings. One of the techniques that they can actually use is a disclaimer trust which in essence works like this. This trust created by an attorney works in the way that certain portion of the estate is actually disclaimed by the surviving spouse and it goes into the trust. In turn the trust will at a later time go to the surviving spouse's heirs and as such they can take advantage of the exclusions from taxes.

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Special Needs Trust - 7 Frequently Asked Questions About Special Needs Trusts

It's never easy to think about what will happen when you're gone. However, it's an eventuality you must plan for, especially if you have a child with special needs. Who will take care of them? Will they have the necessary monetary resources? These lingering questions can be answered years before if you have a special needs trust drawn up. Here are some of the most commonly asked questions about this type of trust:

My child has special needs. What will happen to him or her when I'm gone?

You may be anxious when thinking about the care your child will receive once you've passed. You might wonder if his or her quality of life will suffer with your absence. However, do you have the resources to ensure quality care without SSI or Medicaid assistance? If not, then your child will need these benefits and funds to supplement them. Hence the need for a special needs trust.

How does a special needs trust work?

It provides your child with benefits without losing public welfare assistance, like SSI and Medicaid. This type of trust comes in two categories: self-settled, where benefits like a settlement or inheritance don't interfere with governmental aid; and third party, where the disabled is given funds from family members and others.

Does my disabled family member need a trust?

It depends on the circumstances. Not every disabled person who has been awarded a settlement or inheritance needs a special needs trust to continue receiving government benefits. If your relative would have trouble overseeing the assets, may need benefits later or could be taken advantage of, then a trust is advisable.

Will the trust qualify them for Medicaid, SSI or other public aid?

No. The trust makes it easier to qualify for aid, although the individual must meet qualifications to receive assistance.

What will trust pay for?

It will provide the resources to pay for all types of medical treatments, like physical therapy, medications and devices. Daily living requirements, like a car, housing expenses, clothing and food, are also eligible to be paid for from the trust. SSI benefits may be reduced some if the trust is used to pay for food or shelter.

How are trusts taxed?

In order to establish and administer the trust, income, gift and estate taxes need to be considered and reviewed carefully by an attorney or accountant.

How does the beneficiary access the funds?

In establishing the trust, you must select someone to be the trustee. This person should not give your relative the funds directly, as this could disqualify him or her from future government benefits. Instead, the trustee should use the assets to purchase necessary items, like a personal care attendant, vacations, furnishings, medical expenses, etc.

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Donor Advised Funds and Your Legacy

There was a lot of attention brought to the subject of philanthropy recently when Warren Buffet and Bill Gates teamed up to issue the "Billionaire Challenge." They called on all of the country's billionaires to make a pledge promising to give away at least half of their fortunes over a period of time. Buffet is walking the walk; he says he will eventually give away just about all of his vast wealth, and he has given $8 billion to the Bill & Melinda Gates Foundation over the past several years alone.

When you have been successful during your life and you recognize that you have more than ample resources to take care of your family after you're gone it is natural to consider charitable giving. The trick is to find an efficient way of doing so, and this is why the donor advised fund has been steadily growing in popularity among those who are looking for a way to give something back.

A donor advised fund is an entity that is maintained by a third party that provides the infrastructure through which many people can make charitable contributions to multiple charities through one act of giving. These third parties include community funds, for-profit financial services companies, and charitable giving programs. You make donations into the fund and as the name of the vehicle suggests, you as the donor can make recommendations concerning how you would like the assets to be invested and which charities you would like to support.

From a tax perspective donor advised funds can be appealing because you can take advantage of the deduction that comes with a contribution quickly and efficiently and decide on your recommendations later. In addition, should you decide that you would like to contribute appreciated securities to the fund you may deduct the entire market value of the donation but you incur no capital gains tax liability.

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Last Minute Wills

One of the things which is most uncertain in life is precisely when it will end. It is ironic that for those of us lucky enough to be forewarned of the approximate date of our death, allowing us to prepare our affairs and say goodbye to our family and friends, we often unfortunately are then subjected to a harsh fight with illness - a fight which we have no hope of winning.

For the rest of us, we have no idea how long we have left. Yet despite this, many of us still prefer not to face what is coming, and avoid putting our affairs in order.

Yet all is not lost, even if you find yourself in hospital undergoing treatment for a terminal illness or severe injuries.

Some consultants provide a service whereby they will visit you in hospital and, provided it can be proven that you are of sound mind at the time, will take your instructions and produce a valid UK Will within a matter of hours as well as organising an additional visit for attestation.

It can also often be arranged to have the Will signed and witnessed, at the request of your Executors.

This procedure is always kept strictly confidential, allowing you to settle your affairs, even at the eleventh hour. However, it is of course always advisable to keep stress to a minimum by facing facts whilst you are still healthy and have the energy to focus and organise. Take a few hours out of your busy life and prepare your Will, to ensure that, when the time comes, you can rest safe in the knowledge that your loved ones will be cared for after you've gone.

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What Is The Role Of A Probate Solicitor?

Many solicitors offer probate alongside their wills services but many people do not necessarily understand what probate means and what the role of a solicitor is in administering it.

Probate is basically the legal process of sorting out any estate, will or other unresolved issues after someone has passed away. A probate solicitor will ensure and bear witness to see that the will is properly executed and that what takes places adheres to the law.

When a person makes a will, they will usually appoint the same solicitors to be in charge or probate after they pass. This has the advantage of knowing that they will be more likely to have a better understanding of the wishes in the will, having helped to put it in place. You will also be sure that they have written the will in a way that suits their probate method.

A probate solicitor may have to choose an executor of the person's will if this has not been stated in the will. They will usually choose a close family member or friend if none are available.

Administering probate can be a stressful and complicated process so hiring an experienced probate solicitor is a good idea to help make sure that everything runs smoothly.

The probate solicitor will first value the estate of the deceased, looking at property, bank accounts and other financial investments. They will then decide whether general representation is needed. This is a document which gives written permission for the executor to administer the will and is nearly always needed when a person leaves stocks or shares, property or land held in their own name or as 'tenants in common' or if they have certain insurance policies.

A probate solicitor can also help to fathom inheritance tax for you to assure you pay the correct amount. Inheritance tax is not always due however if the total of any estate left in the will plus any gifts made within seven years is more than £325,000 (in 2011-2012), then inheritance tax is payable at 40%. There are some things that change the threshold such as for married couples and civil partners, gifts to charities, annual relief, small gift allowances and business, woodland, heritage and farm relief.

A probate solicitor will then make sure all the correct people in the will are paid what they are due, that any fees and charges are paid and that any loose ends are tied.

It should be noted that probate laws in England are different to those in Scotland and Ireland. For any clarification, you can always head to the DirectGov website or visit a citizens advice bureau where someone will be able to make sure you get the support you need.

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