Although none of us will be able to escape it, no one wants to think about it. If someone depends on you for financial support, a legal will and trust is essential in helping to protect your loved ones.
Not only does estate planning help avoid – or at least minimize – family disputes once you are gone, but it also ensures your possessions and resources end up in the right hands. If you or someone you know is thinking about drawing up a legal will or trust, contact an experienced Brooklyn estate-planning attorney today.
Making a Will Legal
Below are 10 things to consider when drawing up a legal will and trust:
1. What is a will? A will is a legal document in which an individual declares who will manage their estate upon death. Other issues that may be addressed in a will include who will become the guardian of any minor children and/or dependents and who will receive specific real or personal property previously owned by the deceased.
2. What if I die without a will? If one dies without a will, known as intestate in legal terms, all of the assets will be divided up according to state intestacy laws – which may or may not provide the result wanted.
3. What is a trust? A living trust provides lifetime and after-death management of assets and property. Unlike a will, court involvement is not required. The expense, publicity and court supervision of asset management can be avoided through a properly written trust.
4. Do I need an Attorney? While some software exists that can generate a basic will, many factors are not considered in these types of programs. Specifically, individuals concerned about estate tax, small business owners, parents of children with special needs, spouses with prior divorces and children from previous marriages, and couples where one partner is facing a terminal illness all can benefit from the legal advice of an experienced estate planning attorney.
5. Should spouses have joint or separate wills? Almost all estate planners advise against joint wills, and some states do not recognize them as holding legal weight. Even if the separate wills of a couple seem almost identical, it is likely that properly may not be jointly held and rare that the couple will die simultaneously. Likewise, separate wills allow for spouses to address specific issues such as children from prior marriages, pre-marital assets, and ex-spouses.
6. What is an executor and who should I choose? An executor is the person in charge of administering the estate after one’s death. A spouse, child or another trusted person (such as a friend or relative) should be chosen. If assets are complicated, then someone with a legal or financial background will likely be better suited for the position.
7. Where should a will or trust be kept? A probate court, the court that has jurisdiction over these matters, requires an original will to be admitted prior to administering the estate. Accordingly, this document should be kept in a safe, yet accessible place. A water and fireproof safe in your home is a good place. An attorney or another trusted person should have a signed copy as well in case the original is lost or destroyed.
8. Do I have to update my will or trust once it’s written? This depends on whether or not you want to make changes to your original will. It is important to keep in mind that the most updated, valid will in existence at the time of death is what will govern the administration of the estate.
9. Who can contest my will or trust? When someone contests a will, they are challenging the legal validity of the document. A will’s validity may be challenged in its entirety or in part. Depending on the state in which one lives, a beneficiary, spouse, ex-spouse, or child who believes the will goes against intestacy laws may challenge its validity.
10. Who should witness my will or trust? Although in most states anyone can act as a witness, it is best that the person not be a beneficiary. Known in legal terms as a disinterested witness, a person who will not benefit from the will is not only neutral but also more likely to not be challenged. Some states require two witnesses while others require a will to be notarized. Following these details are important and essential in creating a valid, legal will.