Category Archives: After Death

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Pretty young lady in her 20s with white blouse is sitting reading a book. Perhaps her parents are helping support her now. But what will happen in the future after her parents have passed away?

Will my kids be able to enjoy the same lifestyle?

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“Will my kids be able to enjoy the same lifestyle as me?” That’s a question that many people worth $10 million U.S. or less have. How do I know this? Because I’ve been an estate planning attorney since 2001. A number of my clients are worth around $10 million. If your net worth is around $10 million, you’re pretty well off. But you’re not quite well off enough to put your children in a position that they will never have to work. (This is mentioned in a 2014 article in The Telegraph.) Also, if you’re living off investments, you realize that there’s always a risk that your investments could shrink in value.

But here’s the good news. There is something you can do. At least help your kids get the most benefit from their inheritance. The fact is that most kids of wealthy families squander their inheritance. However, I do have a couple of practical suggestions for you. Now I’m not a fan of quick fixes because usually they don’t work. But here are a number of specific things you can do to help ensure that your kids will be able to enjoy a good lifestyle after you’re gone:

Don’t give the money to your kids immediately when you’re gone.

It’s so common to have a will or trust that says something like “After I have died, I want everything to go to my children equally.” This might work for a very modest estate. But if your estate is worth over $500,000 I would draft the will or trust so that your wealth remains in trust for your kids’ benefit. They can receive discretionary distributions. You will have a neutral trustee to administer the trust. The trust language will encourage your kids to continue to be productive. This will help make the money last as long as possible. WHY IS THIS IMPORTANT?  Because this is the only way to ensure that your kids don’t (a) squander their inheritance right away or (b) fight over how things are divided.

Be careful of Powers of Appointment.

One such potential landmine is what’s called a power of appointment. These are added to trusts for tax purposes. But they also allow the person with the power to change the beneficiaries. The result is it the love ones you want wanted to receive everything after you’re gone may end up getting nothing. (Obviously, your ability to help your kids enjoy the same lifestyle in the future is hampered if your wealth somehow gets transferred to someone else. You’d be surprised at how often this actually happens.) It’s probably best to have an estate planning attorney who also does probate litigation. Such an attorney is going to have a better idea of what actually works in the real world (in terms of drafting your trust and other estate plan documents).

Third, have an alternative dispute resolution provision in the trust and other documents.

Require that anyone who is to receive any benefits from the estate or trust agrees to at least attempt resolving issues without going to court. This will greatly reduce the likelihood of your loved ones having to hire attorneys to sort out legal issues after you’re gone.

Finally, make sure your trust appoints a trust protector.

his is a neutral person who can make changes as necessary. This is another way of preventing your loved ones from going to court to resolve conflicts. For example, if you choose one child to be trustee, maybe that child will make self-serving choices about dividing personal property (family heirlooms, etc.). This can cause enormous tension in the family. A trust protector can remove that child as trustee and insert a neutral trustee to dissolve the conflict.

This is just a short list of things you can do to help ensure that your kids will enjoy your same lifestyle after you’re gone. Having a neutral trustee is very important. People who suddenly come into money and up usually squandering it. There’s no perfect solution that fits every situation. But these are some steps that I have seen work time after time.

If you have any questions, call us at 602-443-4888 or email me at paul@magellanlawfirm.com.


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Photo of the musician Prince on a purple motorcycle

Bequeathing Trouble: Prince’s Estate Plan

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Prince’s death came as an enormous shock to the world. And the $150 million in estate taxes that his family will end up paying will come as a shock to them. It turns out that Prince’s estate plan was to not have a plan.

The untimely death of the enigmatic music icon left two things:

  1. Millions of grieving fans
  2. A vault of unreleased recordings

But just what’s going to happen to those recordings—a collection reportedly large enough to release new music for the next 50 years—and the 57-year-old pop star’s $300 million in assets, is still very unclear.

Why?—because Prince died without setting up an estate.

The absence of an estate plan is surprising for an artist known for his meticulous attention to detail, but in reality it is an all too common occurrence for the wealthy.

  • “It’s too expensive”
  • “It’s too much trouble”
  • “I’m not planning to die”

These are ALL lines I’ve heard over the course of my career, and they’re all equally frustrating to hear. I really shake my head at the “It’s too expensive” excuse. Consider Prince’s example. If his estate is worth $300 million, as reported by CNBC, then his family will pay half of that in taxes. Compared to $150 million, spending $50,000 in estate planning sounds pretty cheap to me.

You see, whether Prince wasn’t ready to think about his own mortality, or he simply forgot to form an estate doesn’t matter. What DOES matter is that his heirs are now going to be mired in paperwork with government.

By failing to form an estate plan (or even a will), Prince died intestate, which means no instructions were left. No instructions mean the government has to fill in the blanks. A court will appoint an executor for the estate, and after debts, taxes, and probate costs, will divide what’s left according to the laws of intestate succession.

Prince completely surrendered his right to control what happens to his worldly possessions—music, money, property, clothing, jewelry, etc.—by not taking the time to form an estate plan.

Worse still, he’s pass along the financial, emotional, and legal burden of settling the estate to his family.

In my experience, when a high-value individual dies intestate, lengthy in-family legal battles over rights, custody, or the valuation of assets, are not far off.

In the case of Prince, the deceased artist’s sister and half-brother have very different ideas about what should happen to his unreleased recordings, and those different ideas will—at some point—lead to a legal confrontation.

Prince’s legacy—his legend, his unpublished songs, his wealth, his property, his famous outfits, everything—will be controlled by people he has never even sat down and had a conversation with.

The executors of Prince’s estate literally don’t know him any better than you or I do—we can only hope they’ll make decisions he would approve of.


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Should you waive bond?

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If your loved one died either without a Will, or with a Will that fails to specify if bond is waived, the person nominated as Personal Representative (aka, Executor) will probably ask the other heirs to waive bond.  (Click here to see a sample Waiver of Bond form.)  Should you waive bond?

What is bond? Bond (in terms of a probate) is a type of fiduciary insurance policy that insures against the Personal Representative improperly administering the estate or stealing assets.  In order to qualify for bond, the Personal Rep needs to either have good credit and a net worth that equals the value of the estate, or find someone who meets those qualifications to co-sign as a guarantor.

The main reason that a nominated Personal Representative will ask other family members to waive bond is the PR can’t qualify because he or she has bad credit or does not have a sufficient net worth.  This is a bad sign.  Do you want someone who the credit reporting agencies recognize as a bad money manager being in charge of your loved one’s estate?  Probably not.

You don’t have to be nice.  It’s okay to protect yourself.  Require the PR to post bond.  It will protect yourself in case the PR acts improperly.  If you give in, and sign the Waiver of Bond form, it’s hard to unwind that.  If the PR gains control of the estate and steals money or makes bad decisions, you won’t find out for at least six months to a year. By then, the money could be gone.  Even if you then file a Petition to remove the Personal Representative and get a judgment against the PR for the missing money, do you really think you can collect against someone with few assets and poor credit?  Good luck!

If you have any questions about what to do, reach out for help.  Call a probate attorney at Magellan Law (at 602-443-4888) and ask for a free consultation.  You may need to pay an attorney for a little time to assist you.  But that will be money well spent.


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Your Husband Died and His Children are Asking Questions

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If your husband died and his children are asking questions, what do you do? Your husband’s kids may be asking if they can get your husband’s belongings, such as family photos or furniture. Perhaps you and the step children don’t agree on whether your husband should be buried or cremated.

First, you need to see a probate attorney right away. Find out your rights and responsibilities. Once you know where you stand legally, then you will be better able to deal with the other family members. Treat your husband’s kids with respect. But you also don’t need to be a door mat. Maintaining communication is important. It is usually best to invite them to the funeral or memorial service. It also helps diffuse some of the emotions by allowing your husband’s kids to get mementos, such as family photos. These are easy enough to copy and distribute. (You can either take the photos to an art store than can duplicate them. Or there are places that can scan them and save them digitally.) The same thing applies to military medals; you can purchase duplicates for family members who want them.

As to the bigger issues (like your husband’s house and bank accounts), you need to understand that the devil is in the details. Estate planning and probate can be complicated. To help explain what happens, let’s see what will happen to your husband’s house:

  1. If your husband added you to the house deed as “joint tenants with right of survivorship,” then you get the house now that your husband died. Even if your husband had a will or trust, the designation of a beneficiary on a house or account trumps whatever it says in the will or trust.
  2. If the house was in your husband’s name, and he didn’t have a will or trust, then the house is transferred according to state law. The applicable statute in Arizona is somewhat complicated, but generally you (as the surviving spouse) get 50% of your husband’s “stuff” and his kids get 50%.
  3. If your husband had a will, then the will determines who gets what.
  4. If your husband had a trust, you need to see a probate attorney.  While the trust probably determines who gets what, this is not always black and white. For example, you are probably the sole trustee now that your husband has died. However, there are other issues. What rights do you have to income and principal? Are you supposed to divide the trust into different subtrusts?  Do you have a power of appointment?

It always amazes me how blended family seem to get along fine over the years until one of the parents dies. Then all of a sudden the biological children of the deceased parent becomes scared that they’re not going to be treated fairly. Sometimes this is justified, and sometimes it is not. So often, the surviving spouse excludes the other side of the family from even basic civilities. Suddenly, the surviving kids never find out about the funeral. Their request for copies of photographs and family mementos go unanswered. Sometimes they can’t even get a copy of the will! This friction can lead to arguments and even court battles.

If your husband died, you need the help of a probate and trust attorney who will take charge right away. Give us a call at our Scottsdale office and ask if we can help you.


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What is a De Facto Personal Representative?

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In Arizona, and perhaps in other states, a court can hold a person liable for managing a deceased person’s estate even prior to being appointed as personal representative. I refer to such a person as a “de facto personal representative.” Under Arizona law, such liability arises according to  a combination of A.R.S. § 14-3701 and  the court’s inherit equitable powers. Such a liability can arise, for example, when someone is nominated as personal representative in the deceased person’s Will, but that person decides it is more beneficial personally to take no action (sometimes failing to probate the Will for years) and simply hold onto estate assets for personal gain. Such a person can be held accountable as a “de facto personal representative” for failure to abide by the duties of a personal representative, even prior to the person being officially appointed by the court.

The Arizona Probate Code specifically authorizes certain actions by a person acting as Personal Representative prior to appointment, thus essentially creating the possibility of a “de facto Personal Representative.” A.R.S. § 14-3701 (“Time of accrual of duties and powers”) provides:

The duties and powers of a personal representative commence on appointment. The powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, a person named personal representative in a will may carry out written instructions of the decedent relating to the decedent’s body, funeral and burial arrangements. A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative.

(Emphasis added.)

Courts in other states have interpreted similar statutes as creating a “de facto Personal Representative,” and have found such a person liable for failing to live up to the fiduciary duties of a Personal Representative. See, e.g., Footnote 15 of In re Estate of Bryant v. Bryant, 793 A.2d 487, 493 (D.C. 2002), which states:

While Ms. Bryant had yet to be appointed formally to serve as personal representative, D.C. Code § 20-505 (1981 and 1989 Repl.) provided that “acts which by statute are authorized to be done without prior Court approval after the issuance of letters but which in fact were committed by the personal representative prior to issuance of letters, when done in good faith, shall have the same effect as acts occurring after the issuance of letters.” A personal representative is authorized to pay valid claims and distribute the estate without first obtaining court approval. See D.C. Code §§ 20-701 (a), 20-741 (r) (1981 and 1989 Repl.). The trial court found no genuine dispute (and we agree) that Ms. Bryant acted in good faith, and without obtaining any improper personal advantage, when she transferred the funds to Charles Bryant to enable him to pay partnership creditors. Thus we treat that act as that of a de facto personal representative, and evaluate it against a personal representative’s legal obligations.

(Emphasis added.)

However, the Arizona statute (A.R.S. § 14-3701) only discusses powers of a de facto Personal Representative, and not the person’s responsibilities. Section 14-3701 states, “[t]he powers of a personal representative relate back in time to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter.” Does this mean, for example, that someone acting as personal representative following appointment is held to the fiduciary duties of acting in the best interest of the successor of the estate, but that same standard does not apply to someone who, prior to appointment takes control of estate assets (such as the deceased person’s house), treats those assets as her own, fails to tell the rest of the family that they have an interest in the estate, and/or fails to collect rent (and hold it for the rest of the family)?

Such a result would make no sense. That is essentially what the Estate of Bryant case holds. And it seems ludicrous to think that an Arizona court would decide this case any differently.

If you know of someone who has failed to act responsibly regarding a deceased person’s estate (prior to that person being appointed as a Personal Representative), you should contact a probate litigation attorney right away. You may be able to have a court hold that person to the same standard as an appointed Personal Representative, including the duties to serve the “best interests” of the successors to the estate, and to act with fairness and impartiality to the other heirs and devisees (beneficiaries of a Will).


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When One Party to a Contract Dies

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If one party to a contract dies, the deceased person’s estate can usually simply enforce the agreement the same as if the original party to the contract were still alive. However, things can get even more complicated when dealing with family. For example, let’s say that one person loans money to another, such as when a parent loans money to a child. Is the contract still enforceable even when one party to a contract dies? Being a lawyer, my answer is, “It depends.”

For purposes of this post, I’m going to assume that there once was a valid contract. In other words, I’m not going to analyze the requirements to form a valid contract (such as offer, acceptance, lack of valid defenses, etc.). And I’m not going to analyze whether it was required to have been in writing (such as for a contract to transfer real property). However, I will discus some of the trickier issues that can arise when a person who is part of a contract (in other words, a “party to the contract”) dies.

Statute of Limitations Issues. A statute of limitations is a statute that limits the amount of time within which you can bring a legal action to enforce a contract. In Arizona, for example, a legal action to enforce a written contract signed in Arizona must be brought within six years of the breach. See A.R.S. 12-548. But what happens when we are dealing with family members?

Imagine this example: A parent loaned money to a child 10 years ago, and the parties signed a written loan agreement. The loan agreement stated the amount that was due and the interest rate. However, it did not provide a due date. The parent just died. Is the contract enforceable by the parent’s estate? Probably yes, unless some other defense applied, such as laches.

How about if the contract required periodic payments, plus an optional acceleration clause on the due date of each matured but unpaid installment? In that event, the six-year period would begin to run on the due date of each matured but unpaid installment. As to unmatured future installments, the period commences on the date the creditor exercises the optional acceleration clause. Navy Fed. Credit Union v. Jones, 187 Ariz. 493, 930 P.2d 1007, 233 Ariz. Adv. Rep. 47, 1996 Ariz. App. LEXIS 281 (Ariz. Ct. App. 1996).

Discovery Rule. This is the rule that a claim accrues when the plaintiff knew or should have known by exercise of reasonable diligence that the plaintiff had been injured. Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 898 P.2d 964, 193 Ariz. Adv. Rep. 3, 1995 Ariz. LEXIS 55 (Ariz. 1995). The important inquiry in applying the discovery rule is whether the plaintiff’s injury or the conduct causing the injury is difficult for the plaintiff to detect. Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 898 P.2d 964, 193 Ariz. Adv. Rep. 3, 1995 Ariz. LEXIS 55 (Ariz. 1995).

Dead Man’s Statute. Arizona’s “Dead Man’s Statute” provides that “neither party shall be allowed to testify against the other as to any transaction with or statement by the testator…unless called to testify thereto by the opposite party, or required to testify thereto by the court.” A.R.S. § 12–2251. While most other states have eliminated their Dead Man’s Statutes, Arizona still has such a statute. However, it is discretionary. Personally, I have raised the Arizona Dead Man’s Statute multiple times over the years. In the context of a dispute over a written promissory note, the issue might be whether the debtor made payments that he claims should have reduced the debt. Verbal discussions with the deceased person over whether there was an agreement that payments or services (such as repairing the deceased person’s roof) were to be applied to the amount owing on the debt would usually fall within the Dead Man’s Statute. However, I have yet to witness a probate judge or commissioner actually keep evidence out based on the statute. Similarly, such discussions also typically fall within the definition of hearsay, but such hearsay statements are usually allowed in as freely as the shirttail relatives that often attend probate hearings.

This is by no means an exhaustive discussion. If you are trying to enforcement a contract against a deceased person’s estate (or if you are in charge of an estate involving such a situation), you really need an attorney.

If you have had any experience involving the enforcement of a contract when one of the parties has died, please share below.

 


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Recovering from Trustee Misconduct

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Recovering from Trustee MisconductBeneficiaries of a trust depend greatly on the trustee to act in the best interest of the beneficiaries and the trust.

Unfortunately, trustees don’t always live up to the duty and responsibility of their position. Beyond creating headaches for family members and other beneficiaries, such misconduct can rob them of their inheritance.

In previous posts we covered the actions that can led to the removal of a trustee [link to post on what qualifies trustee for removal] and how to petition the court to remove the trustee and appoint a successor.

After those important steps, how do you go get back the stolen or misused money? It all depends on whether you are able to trace where the money was sent, if it was spent or if it still exists in some form. Let’s look at an example:

If a trustee used money from the trust to buy a new house, and if that house has not been sold or transferred to someone else, you can get a court order to freeze the property and eventually have it transferred back to the trust.

If the money is gone, there are three ways to recover funds:

  1. Surcharge. This applies if the trustee is also a beneficiary of the trust. In this situation, the former trustee’s inheritance from the estate can be reduced by the amount of any judgment the court passes against him or her. To have a surcharge ordered on a former trustee, you must file what’s known as a “Petition for Surcharge” with the probate court.
  2. Seize assets. If you’re able to trace the trustee’s spending to existing assets (cars, jewelry or other property), or if you’re able to show bank statements showing cash the trustee’s withdrawals from estate funds at ATM machines, the court can place a judgment against the trustee, making it more likely that you will get the money back. If the trustee has spent money on intangible purchases such as vacations, it will be much harder to get the money back.
  3. Personal refund. If the trustee has other personal assets (such as a house or bank accounts), the court can order the former trustee to turn over those assets to compensate for the value taken from the trust.

The process of getting the money returned can be lengthy. It can take from three to six months or more to settle a case recovering losses. The court process involves gathering evidence, and filing a petition with the probate court (this is all part of the steps necessary to remove a trustee).

After the court determines the amount of damages caused by the former trustee, the new trustee or other beneficiaries can then request the court to make further orders. To give an example, let’s say that a former trustee, Roger, owned a house, which used to be owned by the trust. After Roger has been removed from the position of trustee, the court can order that the house belong again to the trust. An attorney for the trust can then get a certified copy of the order and record the ownership of the property with the county recorder in the county where the property is located.

If you’re dealing with a trustee who is mishandling a trust, don’t wait to seek help. An experienced probate litigation attorney can walk you through the tricky and complicated petitioning process. It’s important to have someone knowledgeable on your side who knows the law and the court system.

Your attorney should work closely with you and the court to help you recover lost funds that are justly yours. The probate courts are there to help you and your family. Remember to act quickly and seek the assistance of an attorney. This will increase the likelihood that you will recover your inheritance.

Have any questions about recovering from trustee misconduct? Give us a call. We’d love to help.

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Probate Disputes: How to Deal with Estate Conflict After Someone has Died

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How to Deal with Estate Conflict After Someone has DiedSettling an estate after a loved one’s death is a complex process.  The process can be even more challenging if detrimental disagreements and conflict arise among the various people who believe they are entitled to an inheritance from the estate. The court offers a recourse to resolve such probate disputes.

Here are five of the most common probate disputes that arise after someone has died:

  1. Who should be in control of a deceased person’s property? (In other words, who should be named the Executor or Personal Representative?)
  2. Has a trustee or personal representative done something wrong? Or has that person failed to do what was required?
  3. Did someone do something wrong prior to the person’s death? (For example, did someone acting as a guardian or conservator or agent under a power of attorney do something wrong?  Perhaps a trustee helped himself or herself to money held in trust?)
  4. Who should get the property of a deceased person?
  5. Is the last will and testament valid or was it forged? Or was the deceased person pressured to sign it?

The most common probate disputes arise when the personal representative or executor of an estate is doing a poor job of fulfilling executory responsibilities.

Let’s look at a hypothetical example. When Sue dies, her son Richard is appointed as personal representative. Instead of selling Sue’s house and splitting the proceeds between his siblings (as Sue’s will specifies), Richard moves in and takes up permanent residence. He never sells the house or distributes the proceeds to the rest of the family.

To complicate matters further, Sue has had a mortgage on the home and a loan on her Buick. Her will had stated that these assets – the home, the car – were to be sold with the money from the sale distributed equally between her children, but Richard begins making the payments to the bank so the bank never complains.  Richard doesn’t take very good care of the house and car, and at some point, Richard loses his job and stops making the payments to the bank.  Now the value of the house and car have gone down and the bank is threatening to foreclose on the house and repossess the car.

Richard’s sister Beth has had enough and doesn’t want to see their mother’s legacy squandered by her brother’s failure to live up to his responsibilities as personal representative. Beth calls the police to get help evicting her brother, but the police wont’ get involved in such cases, except to prevent physical violence.

This is where probate court and a probate litigation attorney can help.

But probate should be brought in quickly. One of the biggest mistakes people make in situations similar to this is waiting too long to hire an attorney. Delayed action can result in disappearing assets.

Another common mistake is hiring an attorney who has little or no experience in probate litigation. An attorney without direct experience in resolving probate disputes won’t be able to advise you properly and may in fact leave you with the impression that nothing can be done.

Dealing with disputes when settling an estate can be quite tricky. Finding common ground in any situation may be extremely difficult without the help of a qualified lawyer. If you’re dealing with a complex situation, don’t attempt to handle the situation without the help of a skilled probate litigation attorney.

Probate attorneys do more than provide legal information. They will serve as your legal “coach” and will help you to arrive at the best possible outcome.

And working with an attorney who knows how to solve general probate disputes will give you confidence that your loved one’s estate will be handled properly.

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Testate and Intestate: The 2 Things You Need to Know About Your Last Will and Testament

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The 2 Things You Need to Know About Your Last Will and TestamentIf you don’t have a plan for your estate after you die, the state where you live has one for you. But you probably won’t like it.

Even if you don’t believe in the afterlife, you need to take control of what will happen after life. Your life. For your family’s sake. Without a valid, comprehensive living will (a legal document that specifies what you want to happen to your assets after you die), your family will be left to pick up the pieces.

You should be aware of two definitions about your last will and testament in order to protect your assets and make things easier for your family. These definitions involve the difference between testate and intestate. The difference is simple, but it can determine whether or not your wishes are carried out.

Definition 1: testate – Having a valid will made before one dies. “She died testate.”

Definition 2: intestate – Not having a valid will made before one dies. “He died intestate.”

Translation: If you have a valid will, you are said to die testate. If you die or become incapacitated without a valid will, you are said to die intestate.

It’s also important to understand what makes a will valid and legally binding. Let’s look at the key components of a living will.

A valid will must provide instructions stating:

  • whom you want to receive something,
  • what you want that person to receive and
  • when he or she will receive it.

A valid will must be in writing and must be signed by the testator (the person making the will) or in the testator’s name by some person in the testator’s conscious presence, and by the testator’s direction.

To define this more simply, your will must be in writing. You must sign it. If you’re not able to sign it (if you become paralyzed or otherwise incapacitated), someone else may sign for you under your direction. Most wills are notarized and include a self-proving affidavit. While this extra step isn’t strictly necessary, it does help expedite the process.

A valid living will is important for every family. It helps make the complex process of settling an estate much simpler.

Now that we’ve given you the basics of a valid will, you should be aware of what not to do with it. Here are three common mistakes people make when it comes to a last will and testament:

  1. Putting the will in a bank safety deposit box. Unless you have specifically given someone the authority to open the safe, you will have to have a probate to determine who has authority to open the deposit box. This can create an unnecessary sticky situation.
  2. Not giving a copy of the will to your children or other involved parties who will be handling the estate after your death. If your will is stuffed between the mattress or hidden in the back of your sock drawer, your family may not be able to locate it. Without a copy of the will, your estate will be subject to probate.
  3. Not being specific about who will be in charge of the estate in blended family situations. This is one of the most common causes of confusion and disagreement.

Take the time to create a valid will and give instructions. This will give you and your family peace of mind both now and later. It may be uncomfortable for you to plan your estate, but it’s far better to do it correctly now than for your family to pay an attorney to try to fix later.

Do you have any questions about testate or intestate? I’d love to help. Please leave a comment below or contact our office.

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