Preparation of Wills – Attorneys – Magellan Law
Wills are one of the important portions of an Estate Plan. A Will is a legal document that specifies a person, called the Executor or Personal Representative, to manage and distribute the estate after the death of a loved one. Often times people jot down things they want to happen when they pass away and assume this is a “will” but the law requires certain elements for a Will to be valid and in order for a Will to be enforceable, it needs to meet all of the proper legal requirements.
Unfortunately, many times family members end up contesting a will for its validity. If a will is declared invalid or if the deceased person does not leave a will, the estate could turn into a contested probate, which can be a long and expensive process that most people would want to avoid. It can also tear families apart and cost each family member thousands of dollars. Having a properly executed Will may not avoid probate, but it can definitely streamline the process, reduce the chance of a family rift, and ensure that your wishes are carried out.
Your Will can incorporate everything from assets to personal belongings and even nominate a Guardian for young children, but an attorney is needed to help you know what a Will covers and what it does not. Many things are not covered by a Will such as bank accounts held jointly, real estate held in joint tenancy, or life insurance and retirement accounts with beneficiary designations. It is more complicated than most people realize. Making a simple mistake can mean that your family members are not treated fairly. Most people have more assets than they realize and it’s important to make sure you have properly documented your intentions for the Executor (Personal Representative) so he or she can carry out your wishes. This is a very detail-oriented process, and requires knowing how each asset is owned and how to properly designate what happens to it after you are gone. Simply telling someone what you want is probably not admissible as evidence in court, and therefore is not a replacement for an actual attorney-prepared, written estate document.
Most families don’t talk about death before it happens, so intentions are unknown. The Executor has a huge responsibility to divide your estate, and it will be much easier and less stressful if you give careful instructions in your will before you pass away. For example, it is safe to assume that your family will have arguments over how your personal property should be divided unless you have left written instructions.
Your Will should have a “residuary clause” which designates what happens to property if the preceding provisions fail to distribute everything. For example, you say that everything is supposed to go to your best friend, Billy. But Billy happened to die before you, and you don't list someone to receive your estate if Billy has died. This “residuary clause” helps protect against such an oversight.
The law tends to favor family relationships, so you need to be very careful if you want to disinherit someone like a child. Most states have very specific and strict rules for the language that must be used to accomplish that. In this case, the validity of the Will most likely will be challenged. Therefore, it is even more important to consult with a seasoned estate planning attorney. Contact Magellan Law for a complimentary and private consultation to discuss all the details of Wills.