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A Last Will and Testament stands as the cornerstone to any well thought out estate plan. The legal document achieves several goals, among them: it names an executor, or the person responsible for carrying out your will; it specifies your beneficiaries or people to whom your estate will be distributed; and it can outline your funeral and burial preferences.
If you are married, you may want to name your partner as the executor of your will and one of your children, another relative or friend, as an alternate executor.
In naming your beneficiaries, you can specify who should receive which assets by stating, "John should inherit the house," and "Jessica should receive the car." If, however, you want your assets to be divided evenly among your children or relatives, then you can state: "John should receive 50% and Jessica should receive 50% of all assets." Or you can have a combination of the two. When you use LegalACE, you simply answer a questionnaire that prompts you accordingly and then transfers the appropriate language to the will.
Terms
Beneficiary – A person to whom the estate will be distributed.
Codicil – A legal document that amends a will; a will amendment.
Executor – A person designated to carry out a will.
Intestate – Person who doesn’t have a will when he or she dies.
Testate – The state or condition when a person dies with a will.
Testator – The person creating the will.
Witnesses
Every state requires that you have witnesses sign your will, and even though it's not required in most states, having more than two witnesses is generally a good idea.
Your witnesses must also be disinterested. In other words, they cannot be listed as beneficiaries on your will. If so, they have a conflict of interest, and therefore, cannot witness the signing of it.
Typically, if you die and a dispute arises as to whether you signed the will, your witnesses will be required to appear in court to testify on your behalf. Most states, however, have laws that allow you to avoid this procedure by attaching a “self-proving affidavit” (see the Notarization section for more details on self-proving affidavits) to the will.
Notarization
Contrary to what most people believe, you don't have to notarize your will in order for it to be valid. Wills traditionally accomplished this by having several witnesses sign and later attest to the signing in court as to the validity of the will. Today, notarization serves as one more element of proof that the signer is truly the signer.
A modern legal device called the "self-proving affidavit" essentially merges the requirement of witnesses with notarization. This document, signed by the witnesses and the person who initiated it, states that everything in the will is true and is notarized. Usually, if a will includes this affidavit, witnesses will not need to appear in court to testify to the document's validity.
There are a handful of states that do not allow self-proving affidavits. There are also a small number of states that do not require that the witnesses appear for the will to be admitted into probate (thus making the self-proving affidavit unnecessary). Once you decide to have your will prepared, our LegalACE will questionnaire will filter out whether your state allows affidavits or not.
When it Goes into Effect
A will goes into effect after you, the testator, pass away and probate proceeding take place. Probate is the legal process in which the court names an executor or a person to represent the estate, confirm the validity of the will and administer your estate.
Dying Without a Will (Intestate)
When someone dies without a will – or dies “intestate” – state law takes over. Those state laws dictate very specifically how a person's property (or estate) should be divided up.
This presents the obvious question: why would someone want to prepare a will in a scenario in which he or she would simply be leaving property to family members in a way that their state has already outlined? There are several reasons. First, estates that are distributed intestate often incur greater probate costs than do estates that are passed by testate (with a will) succession. Thus, if you die without a will, far more of your estate is eaten up by court costs than it would be if you had a will.
Another major concern is that when you die without a will, states generally don’t make provisions to distribute your property to people unrelated to you. The probate process excludes boyfriends, girlfriends, unmarried partners and friends. So, if you want friends or loved ones unrelated to you to receive part of your estate, a will or some other estate planning device is the only way to achieve this.
The final concern involves kids. Most state laws require the courts or social service organizations to decide who will care for your children if you don't leave a will. On the other hand, a will allows you to designate a guardian of your choice. If you have a choice in the matter, wouldn’t you rather determine who will care for your children than let the government do it for you?
Changing Your Will
Once you’ve created a will, it’s crucial to update it periodically. Situations that prompt a change in your will include a new child; a death; or a drastic change in your financial portfolio.
There are two basic ways to change your will. One is to create a new will altogether. In the new will, you must state that all previous wills are null. The new will then goes into effect. Another way to change your will is by creating a will amendment or a codicil. It references the original will, but simply adds to or modifies the terms.
Unless your will is complicated, it's often easier to create a new one, especially as having multiple codicils can be confusing to people trying to interpret your wishes after you have passed away.
Living Will
A living will outlines specific actions or procedures that you want taken – or not taken – in the event of your incapacitation. Living wills can be general, such as outlining that you do or do not want life support in a life-or-death situation. Or they can be very specific, addressing such issues as whether to administer CPR or dialysis; whether you should be fed food or water through a tube; whether you should be given specific types of pain relief; and whether your organs should be donated.
LegalACE offers living wills and healthcare powers of attorney together, as they complement each other well. For example, if you become incapacitated, you let your healthcare desires be known through a living will; your agent designated by your healthcare power of attorney, however, oversees that those wishes be carried out.
A Living Will May Address These Issues:
Life Support/CPR
Nutrition
Pain Relief
Organ Donation
When it Goes into Effect
A living will goes into effect while you are living, but incapacitated – unable to speak or make your wishes known. Then, the provisions of your living will are considered and overseen by the person you have designated as your healthcare power of attorney.
Will Preparation Checklist
Here are the steps to take in order to prepare to create your will:
Outline your objectives.
Inventory your possessions and assets.
Estimate your outstanding debt.
Prepare a list of family members and other beneficiaries.
Decide who you want to be the executor of your will.
Decide which pieces of property you want to go to which people.
Decide how you want the rest of your estate split up. (What percent to what person?)
Determine whether you need a trust for your spouse or other beneficiaries.
Set up college funds, if needed.
Designate who you would like to care for your pets when you die.
Summary
Take care of your family by making these critical decisions up front, documenting them and designating a legal ambassador, if you will, to oversee your desires. Having an updated will when you pass away means the difference between chaos and stability in an already difficult situation.
Go to www.LegalACE.com or,
Call us at (866) 434-3706, and we’ll walk you through the process.
Although all states have laws that dictate what to do with any property after a person passes away, having a will can eliminate expensive legal fees, probate costs, and the stress that can be imposed on loved ones attempting to sort out a decedent's affairs. Since most Americans are unfamiliar with the laws of testate succession, it is very possible and common for a decedent's estate to be distributed in a manner that they would never have wanted. If you want to eliminate any such uncertainty, if you simply want to make sure that the government does not mandate how your estate will be distributed, or if you want to make sure that someone receives something that they would not have otherwise received, then writing your will is probably a good idea.
After you pass away, your estate must go through probate. Probate basically means that your estate is administered through the court system. If you've written down what you want to have happen to your estate in a will, the process will go significantly smoother, there will be less time spent in court, and consequently there will be fewer probate fees. This means that your heirs will get more of your estate (because the court fees won't eat up all of your assets) and it will take less time for your heirs to get your property. If you pass away without a will, your estate will very likely spent a great deal more time in the court system.
Absolutely. In fact if you don't designate who will look after your children, the court will choose a guardian for you. When choosing someone to look after your children, you should make sure that the designated person knows that you are listing them in your will and what would be expected of them if they became a guardian of your children.
No. Most states allow you to attach a “self-proving affidavit” to your will. The self-proving affidavit is notarized. It helps to eliminate any dispute about whether or not you signed the will and simplifies the process required to carry out a will.
No. A judge can overrule what you have said in your will, however, this is very unlikely. Generally judges will attempt to follow your wishes unless they involve something illegal or unconscionable. For example, if John says that he wants to leave his car to Peter, but John never owned the car in the first place, the car will instead be returned to its rightful owner.
Legally speaking, pets are considered property. Since wills allow for the transfer of property, anyone can list what they want to have happen to their pets in a will. Many wills actually contain separate provisions that deal specifically with pets.
Yes. Chances are you may have a family heirloom or some item that could cause a family dispute. Also, wills allow you to do more than simply leave property to other people. With a will you can appoint a guardian for your children, dictate how you would like to be buried, or declare any other wishes you intend to relay to your family.
Yes. Your living trust typically only covers certain assets and rarely deals with your entire estate. As such, there are numerous items that you own that are not going to be covered by the trust. A will deals with all of those items that the trust doesn't pick up. Most people that choose to have living trusts also have wills.
Driving Miss Daisy
Executing Power of Attorney Like Handing Over Keys of Life
By Cecile Duhnke
Marjorie Wilson can’t wait to escape snowy, gray Chicago and jet off to her vacation home in Cancun for the winter. She has checked everything off her list: she has packed her bags; hired a house-sitter; stopped the newspaper; and executed a Power of Attorney (POA) to take care of her financial affairs while she’s gone. She has designated a Power of Attorney to her niece, Sarah, so that when an insurance settlement comes in the mail for her, Sarah can deposit the check into Marjorie’s account.
William Moffitt feels fine today; his occasional memory lapses are the only symptom of Alzheimer’s Disease he experiences since being diagnosed one month ago. But he knows that the aggressive disease for which there is no cure will inevitably steal his independence, taking his ability to take care of and make decisions for himself. That’s why he has given Power of Attorney to his wife, Lily. When he becomes incapacitated, he trusts that she will take care of him and make the best financial and legal decisions for him as this cruel disease worsens.
These imaginary situations are common scenarios in which people create Powers of Attorney to take care of their affairs.
“Powers of attorney let people take a break from the business of everyday life for a while – or permanently – knowing that their affairs will be taken care of,” says LegalACE chief executive officer Adam Pollicino.
Three Types of POAs
This legal power can be broad or limited, depending on the type of Power of Attorney that is being executed.
1. Nondurable – This type of POA is usually for a limited time period or a specific transaction, such as when someone is traveling out of the country and anticipates a financial transaction during that time. Time limits vary. Nondurable POAs can be set to expire after a certain period of time, or they can go on indefinitely, depending on the principal’s wishes.
2. Durable – This type of Power of Attorney enables the agent to make decisions for the principal even after the principal loses competence to make them for him- or herself.
3. Springing – This document becomes effective at some point in the future, usually based on a specific event taking place in the future. It might “spring” into effect, for example, when an illness incapacitates the principal, and it typically stays in effect until the principal’s death or until a court revokes it.
Powers of Attorney serve as vehicles through which people delegate legal authority to others when they can’t be in charge of their own affairs. In Marjorie’s situation, she created a “Nondurable Power of Attorney,” so Sarah could take care of her finances while she is out of the country for a specific time. William created a Springing Power of Attorney, so that his wife could make important decisions for him when Alzheimer’s disease takes over some time in the future.
Powers That Be
When someone executes a Power of Attorney – whether nondurable, durable or springing –he or she gives the agent the authority to make these and other decisions on the principal’s behalf:
Buy or sell real estate
Manage property
Conduct banking transactions
Invest, or not invest, money
Make legal claims and conduct litigation
Attend to tax and retirement matters
Make gifts
A Logical Extension of an Estate Plan
In many situations, a Power of Attorney is just one of several tools in a person’s estate planning kit. Living wills outline a person’s medical wishes if he or she is incapacitated, while a Power of Attorney gives someone else power to make financial and legal decisions. While Powers of Attorney specifically address legal issues, they are not designed to give the agent power to make health care decisions. Healthcare Powers of Attorney, however, do. They designate specific authority to an agent to make healthcare and medical decisions on behalf of the principal.
“It’s about creating a legal and financial advocate for yourself when you’re unable to make decisions on your own,” says Pollicino.
In fact, many people who are planning their estates will name their spouse or someone very close to them as Healthcare Power of Attorney, so that they not only have financial and legal decision-making power, but also medical and health-related decision-making power for their husband, wife or partner.
Choose Agent Carefully
There is no government oversight or process by which the agent's decisions are approved or denied. So, people should put great care into choosing an agent, as this person will make critical decisions through the power of attorney that cannot be undone. Powers of attorney can be abused, so the agent should be a close friend or family member who could be trusted with big financial and legal decisions.
Agents should be told to keep records of all transactions they make on behalf of the principal for periodic reporting. In a situation where an agent is suspected of mishandling a Power of Attorney, he or she should contact police, local law enforcement authorities and/or an attorney.
When all is said and done, giving someone a Power of Attorney is like handing them the keys when the original driver’s judgment is clouded or absent. The agent is transformed into a designated driver who takes the wheel when life has changed course.
Cecile Duhnke is marketing communications manager with LegalACE.com, an online legal document preparation service based in Scottsdale, Ariz., which offers wills, corporation and LLC formation, trademarks and other legal documents. This article is meant for general information and should not be considered legal advice. If you need legal counsel, contact an attorney.
Where There’s a Will, There’s a…VOID
Americans’ Fear of Death Keeps Families Unprotected
By Cecile Duhnke
Seven out of ten people in the United States don’t have a Last Will and Testament, according to a recent BusinessWeek.com story. Putting the task off until tomorrow – indefinitely – can mean throwing your family into the eye of a hurricane when they most need peace and serenity. When you pass away without a will, your estate will be thrown into probate, forcing the court to decide what happens to your property, and, if you have children, a judge will decide who will take care of them.
Why do we ignore such a crucial responsibility to our families? The BusinessWeek story cited the four top reasons people don’t prepare wills:
Inability to agree on a guardian for children
Fear of dealing with mortality
Fear of the expense
Indecision about how to divide estate
Once you get a handle on these biggest stumbling blocks, it’s time to wake up and smell the responsibility, review your finances and prepare your will. Having an updated Will and Testament when you pass away means the difference between complete chaos for your family and friends in sorting through your estate and having a plan outlining your wishes that can be followed and will lend stability to a difficult situation.
Three Roads to Get There
While the destination is the same, the routes to get there are varied. Preparing a will can be done in many different ways. Here are the three main ways:
Hire an attorney
Have your will prepared by an document preparation company
Buy the documents, fill them out and file them yourself
More Choices with Online Players
In terms of expense, hiring an attorney will cost somewhere in the neighborhood of $1,000. Going through a legal document preparation service often offers high-tech software (particularly with the online document preparation services) to help you prepare your documents at a competitive price – typically $30 to $50. Going it alone will do the least financial damage. Buying the paperwork and filling it out can cost as little as $5 to $10, but you are at the mercy of your legal knowledge and/or your ability to read through the legalese instructions and make sense of them.
The level of service you receive, of course, varies greatly with the amount you pay. Hiring an attorney is at the highest end of the spectrum in terms of service; that’s why you have to pay the big bucks. The major advantage of using the attorney is that they can give you legal and tactical advice, and tell you whether or not it’s a good idea to put something into, or exclude something from, your will. Going it alone offers no support whatsoever, aside from instructions on the forms. Choosing the middle route – a document preparation service – in a sense gives the best of both worlds. Fees are low, but you receive customer service, live people to talk to and general legal information to help you understand the issues you’re dealing with.
Update Often
Once your will is complete, it should be updated from time to time. When should you update a will? If your marital status changes, a new child is born or you move to a new state, you can amend your will with what’s called a codicil or simply issue a new will that supersedes the old one.
There are only two things you can’t avoid in life and most people deal with taxes on at least an annual basis. Isn’t your family more important than the government? Protect your loved ones from the chaos that ensues when you die without a will. Embark on that journey now and finish it – for your peace of mind, for your children and for your family.
Will Preparation Checklist
Here are some tasks to check off and considerations to think about, which will make the process easier when you prepare your will:
Outline your objectives.
Inventory your possessions and assets.
Estimate your outstanding debt.
Prepare a list of family members and other beneficiaries.
Decide who you want to be the executor of your will.
Decide which pieces of property you want to go to which people.
Decide how you want the rest of your estate split up. (What percent to what person?)
Determine whether you need a trust for your spouse or other beneficiaries.
Set up college funds, if needed.
Designate who you would like to care for your pets when you die.
Cecile Duhnke is marketing communications manager with LegalACE.com, an online legal document preparation service based in Scottsdale, Ariz., which offers wills, corporation and LLC formation, trademarks and other legal documents.
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