Wills Attorneys Tag

End of Year Updates

Work with your estate attorney to reduce the number of exact numbers in your will. For example, instead of saying, “I leave $10,000 to my nephew,” you can generalize the number as a percentage. “I leave 10% of my saving account to my nephew.”

On the surface, the use of exact dollar amounts isn’t a problem. However, any money in your estate that is left over after distribution will have to go through probate, triggering fees. So instead of dollar amounts, use percentages to ensure that 100% of your estate is distributed through the will and not probate court.

Of course, even a will that accounts for 100% of the estate could need a regular update. Using the example above, if you happen to move money out of your saving account and into an investment account, you will need to update the information to ensure that your nephew still gets some money when you pass away.

A will is a living document that need regular attention. If you don’t have a will, start by making an appointment with an estate attorney as soon as possible. You don’t have to have your financials in perfect order before you sit down with an estate planner for the first time. An estate plan is an ongoing process, and the best time to start is now.

Living Will vs Power of Attorney

Naming your health care representative will be a critical piece of your living will or health care directive. Unfortunately, conflicts arise when a health care representative refuses to carry out the directives stated in the patient’s living will. Although the living will technically takes precedence over the word of a health care representative, these representatives have power of attorney and, in some jurisdictions, can revoke the original living will

In these circumstances, the cases will frequently go to court soaking up the time and energy of the family members left to discern the right choice. There is a simple, but difficult, solution to avoiding these kinds of conflicts. Talk to your family.

After you and your estate lawyer write your living will, sit down and discuss your decisions with your family. You may quickly discover that the person you’ve named as your health care representative will be unwilling to make these end-of-life decisions on your behalf. In addition, by clarifying these choices as your own, you reduce the likelihood of family members battling over options if you are incapacitated.

As medical treatments increase in their capacity to keep us alive, they also increase the chance of conflict over what are the right decisions for your end-of-life care. Take the time to carefully craft an effective health care directive and you will ease the burden on your family when you can’t speak on your own behalf.

POLST and Living Wills

In 2009, the POLST (Physician Orders for Life-Sustaining Treatment) form became a recognized compliment to a living will or advance care directive. While living wills and advanced care directives are designed to give guidance on your behalf, the POLST is a document intended for physicians to follow if you have a terminal illness or a prognosis of less than one year.

The POLST form is a standard form easily recognized by the variety of caregivers you might encounter during your medical treatments. Because physicians can treat terminal illnesses, such as cancer, with so many methods, the POLST prevents you from making frequent decisions about your wishes. The POLST also prevents you from enduring the same difficult conversation by allowing one or more doctors to make pre-approved treatment decisions for you.

Generally, you will not include a valid, completed POLST form when you and your lawyer are creating a health care directive and estate plan. However, the health care decision-maker named in your living will must sign your POLST to make it valid. When you share your end of life decisions with your health care decision-maker, you can also introduce him or her to the POLST form.

While the POLST will have to be newly-completed if you start treatment for a terminal illness, having previously drafted a copy of the form will make the decision making process easier for you and your family.

An Unfair Will

Frequently parents are confronted with the moral dilemma of how to divide up their estate among children so that jealousies and rivalries don’t flair. Successful heirs frequently don’t see how their less fortunate siblings deserve the same or more inheritance. Less fortunate siblings often feel isolated from a family that never seemed to understand or care about life’s difficulties.

Fortunately, with very little investment, parents can leave as much or as little money to each child — with each child being unaware of the other’s share. By creating a separate trust for each child, there are very limited ways for each child to know how much the other(s) inherited.

There are several types of trusts, and an estate lawyer can help you prepare your estate plan to keep the peace after your passing. Setting up multiple trusts is also a way for you to ensure your money is used wisely and as you’d prefer. For example, if you have a successful heir with his or her own children, you could leave money in a college fund for the grandchildren. If you have an heir with a poor history of money management, you can set up a trust to slowly dole an allotted allowance over the course of your child’s life.

Of course no estate plan is completely free of risk. No matter how many trusts you establish, heirs can file lawsuits and contest your will. However, if you simply communicate this plan with your heirs, your family should remain a cohesive unit after your passing.

New State, New Will

There are many, critical variances in probate laws. Specifically, how each state views trust laws and powers-of-attorney laws. These are especially important aspects of your will that can mean dramatic changes if they aren’t upheld by California courts. Even if California probate courts ultimately uphold the plan you created in your previous home state, there might be a lengthy review process by the courts before your assets are released to your benefactors.

More important than you assets, are you health-related documents. Not only do laws vary from state to state, but treatment options change as well. In addition, if more than three years has passed from the creation of your estate plan, you need to update the health directives to keep pace with the advancing fields of medical treatments. For example, a DNR order from ten years ago is out of date with the kinds of medical options available today.

When updating your will and health-directives because of new home state, you will find that 95% of the estate plan will remain the same. However, the remaining 5% that needs edits can make the difference between a smooth transition for your family and difficult one.

Witnesses to a Will

The witnesses to the will are as critical to the validation process as your signature at the bottom of the will. Today, most wills come with documents (self-proving affidavits) to prove the identity of those who witnessed the will. Without that documentation, the executor has to track down the witnesses and provide proof of their identity.

Without the self-proving affidavits, there are legal options to prove the identity of the witnesses even if they have passed away. While time consuming and expensive, verification by a hand-writing specialist is generally acceptable by modern probate courts.

If you’ve gone through the trouble of having written a will, ask a legal professional to review your will and ensure the witness verification paperwork is sufficient. If you don’t have a will, or your will is out of date, hire an estate attorney to guide you through the logistics of creating an iron-clad document.

Storing Your Will

Make several copies of your will. Add a cover page to each copy with an indication of where the original is being kept. Keep at least one copy of the will in your own documents at home. If you are comfortable, give another copy to the person named as the executor of your will. If you don’t want anyone to read your will before you pass, at least hand out instructions as to where the original is stored.

Avoid using a safety deposit box to store your will. Generally, there are several, strict security measures in place for opening safety deposit boxes, and the death of the box’s owner only makes accessing the box more complicated.

Your local county clerk (or other municipal office) may store your will for a nominal fee. Because this is a lesser-known location to store a will, make sure you provide sufficient instructions as to the local office where you filed your will. In addition, there may not be strict privacy laws that protect your will from being reviewed prior to your death.

If you want to keep the original in your home, buy a fire-proof lock box to store your will. Generally, these boxes are helpful for keeping critical papers such as your will, the title to your cars, and any precious jewelry.

Your lawyer may offer to keep the will in his or her office. This is generally the best idea, however, as mentioned above, leave your family the name of this lawyer, his or her address, and contact information.

Role of the Executor

While you might be tempted to name either your spouse or your lawyer, the job of being an executor can be lengthy and difficult. Consult with your estate planner to help you identify the best person for the job.

While your lawyer will have all of the knowledge to complete the task, the job may take a significant amount of time. You lawyer is going to be charging your estate for legal fees. If the estate is complicated, the cost of using your lawyer could be a drain on the total value of your estate.

The surviving spouse is another popular first choice to be the executor of the will. However, the list of responsibilities is long and many of the tasks take significant concentration and presence of mind. Not only will your spouse be grieving, but your spouse might be elderly and unable to complete some of the complicated responsibilities.

Your adult-aged children are typically good choices for the role. However, even this can be complicated as sibling rivalry can flare during the estate distribution process. The best choice could be a close family friend who will be able to maintain composure during this stressful and emotional time.

Here are a few of the responsibilities the executor will have to address:

• File your will with probate court and inform all interested parties (banks, credit cards, government) of your death
• Create a new bank account for the estate distribution process
• Inventory all assets and inform the court system
• Determine the appropriate probate choice
• Maintain property throughout probate and distribution, and pay all debts and taxes
• Distribute your assets, and dispose of any remaining property

Defending a Will

If you are the beneficiary of a will that is being contested, the laws are generally on your side. While it may be difficult for the excluded relatives to contest a will, it will be worth your while to hire a lawyer to put a quick end to their fruitless fight.

Your best defense is a good offense. While the burden of proof to prove the will is invalid is on those who are contesting the will, you are better off consulting with your own attorney and preparing a case to show there were no problems with the will. The faster you can put together a solid case, the quicker the other side will drop their case and you can get what is rightfully yours.

In fact, if you have the time to review the will before the testator passes away, you can avoid many of these issues altogether. Demanding to see the will, however, is typically not easy. Because the most successful way to contest a will is to challenge the witnesses and conditions of the signing, you can use your own estate planning process as a way to bring up the testator’s will and how he or she signed it.

Regardless of how many beneficiaries there are in the will and how many of them are willing to pay for an attorney to defend the will, you should take an offensive stance and hire a lawyer to prove the will is valid. If those who are challenging the will are going to move forward, it might be years before they are proven wrong. Hire a lawyer and end the conflict now.

How to Contest a Will

Contesting a will is difficult. While each state has different laws that dictate the exact ways a will can be found invalid, there are four basic rules that all states follow. Contesting a will, either successfully or unsuccessfully, will impose serious financial and emotional strain on your family. Even if your lawyer tells you that have a case, the money you make may not be worth the cost.

The most common (and the most successful) way contest a way is to prove that the will was not signed in accordance with state laws. There are very specific instructions that make the signing of a will valid. The number of witnesses, who the witnesses are, and where the will was signed are just a few of the variables that have to be properly documented to keep the signing procedure in accordance with state laws.

Mental capacity is the second way to contest a will. State laws, however, give a wide berth to the definition of “mental capacity” or “testamentary capacity.” Forgetfulness or early signs of dementia are typically not sufficient to prove mental incapacity. You will also need the recent testimony from a physician to prove your case.

Undue influence is the third way to contest a will. You will have to prove extreme duress and pressure to show that the testator (he or she signing the will) was manipulated or forced to sign the will. Again, this is difficult to prove unless the testator has been isolated from friends and family for an extended period prior to singing the will.

Lastly, fraud is the fourth way to contest a will. Typically, this means the testator did not know he or she was signing a will. This is usually include an analysis of the first method mentioned above. Was the will signed in accordance with state laws? As those state laws are in place to unsure the testator is aware of the document, a fraud case will closely examine the conditions under which the will was signed.

If you want to contest a will, time is limited. Contact a lawyer and carefully consider the likeliness of your success.