What is a will?
What is a will and how does it work?
A will is one of the most important, legal, estate planning documents that you can have. A will details what happens to a person’s minor children, dependents with special needs, and assets after they are deceased.
What Does A Will Do and Who Needs One?
The vast majority of adults need a will. In fact, it is so important that if you die without a will, the State has a default plan for what happens to your stuff. Most people would like to have some control over what happens to the items they spent their life acquiring and certainly over what happens to their minor children or adult children with special needs. Leaving your affairs in order is your last act of love for the people you leave behind. There is great comfort in knowing that your children, pets, family, and loved ones will be provided for when you are no longer there to care for them.
How Do I Get a Will Made?
Creating a will is not as is not nearly as difficult or time-consuming as one would expect - at least that’s what our clients say. Whether you choose to work with us or not, you need to work with an attorney that is licensed in your state and whose practice primarily consists of wills and trusts. People that do not meet those two qualifications should not be preparing wills. We have seen far too many wills prepared by incompetent individuals not hold up in court and each time it is devastating to the family. For more information on how to find the best attorney check out this post.
Different kinds of Wills
There are a wide variety of wills and trusts that can be used when planning your estate. Which one you need to use will depend on your exact situation and what you wish to be done with your estate. The only person who can tell you for sure what will work best in your situation is an experienced attorney. There are few types of wills listed here but this by no means an exhaustive list. For the most accurate information speak to your attorney.
Living Will (Advanced Directive)
A living will, now known as a type of Advanced Care Directive, is different from any other type of will. This is because it is meant to function while you are still living. If you become incapacitated and unable to speak for yourself, a living will (advanced care directive) document allows medical professionals to know what you want to happen in the scenarios laid out in your living will (advanced care directive). For example, you can detail whether or not you want life support or feeding tubes should you ever be in a coma or otherwise incapacitated. You may also choose a person to be your healthcare attorney and they would make medical decisions for you if you are not capable of making your wishes known. They would have control over all of the choices made for your care. The healthcare power of attorney is usually a spouse, partner, family member, or trusted long time friend. Even if you are a relatively healthy person a living will (advanced care directive) is helpful in the case of unforeseen circumstances such as a car accident.
By definition, a holographic will is a will that is written out by hand and signed by hand. They are often the choice of those who suddenly find themselves in situations where they believe their demise to be imminent. For example military members in combat, those who have found themselves in an extreme situation like a cave who believe they are about to perish, or someone on their deathbed who does not have time to wait for an attorney. Holographic wills are not ideal as they can be easier to contest by people who believe you would have (or should have) left them something. Holographic wills are also often full of loopholes that the drafter did not intend due to a lack of personal experience with the law.
A simple will gets its name from the fact that simple is exactly what it is. A simple will does not require a lot of legal jargon, clauses, or stipulations. Nor does it need to be complex. This type of will is great if you have very straightforward plans for your estate. Take some time to consider what your plan is for your estate. Do you have a lot of bills that will need to be settled? Are your funeral costs already covered? Whom do you want to have your worldly possession and whom do you want to be responsible for carrying out your final wishes? Those plans are then placed into a legal document and they become your will. While it can be easy to create a simple will it is still best to have an attorney look over it to make sure that it is indeed legally binding. The will may be simple but states still vary on what they will allow. By the time it is necessary to use the will it will be too late to change it.
Trusts vs Will
There are many different types of trusts, but oftentimes, when a person is deciding between a will and a trust they are referring to a living trust. Wills and trusts both accomplish your goal of transferring your assets to someone else upon your passing, but they do so in very different ways Wills have to go through probate court and living trusts do not. Many people mistakenly assume that having a will exempts them from the probate process, but the word “probate” means “to prove a will”. Your will doesn’t mean anything until a probate judge says it does. Probate can be both time consuming with most probates in Tennessee taking a year to conclude and it is expensive as most areas allocate a percentage of the assets to the administrative costs. Living trusts allow you to avoid probate and the cost associated with it.
There are many other types of trusts besides living trusts, but living trusts are the only ones that will avoid the probate process. For example in the case of minors, a will can leave money in a trust to cover the cost of the care of any children that would have been cared for by the deceased. This can be an option to take care of your family should you pass while still raising a family. Further research can help you understand what you need based on your situation. However, the best way to know for sure which will work best for you is to speak with an estate planning attorney.
What is a Trust?
A trust is an agreement in which money or assets that are being inherited are controlled for the benefit of the person inheriting them (the beneficiary or beneficiaries) by a third party (the trustee). This is usually done in the case of a child inheriting a large number of assets. It is seldom wise to give control over businesses, property, or access to major funds to a person who is still learning to read. The person who creates the trust called the settler, trustor, or grantor, can specify when they would like their beneficiaries to inherit.
Popular choices are at the age of eighteen, upon graduation of high school, age of twenty-one, the graduation of college, or marriage. But any time or point of life can be chosen within reason. The idea behind this is so that the estate remains intact long enough to provide care for the beneficiaries as well as allowing them to mature to an age where wise financial decisions can be made.
Probate, Estate Planning and Wills
Probate is the legal process of transferring assets to loved ones after death. Probate takes place in court and, in many places, the law requires the use of an attorney to help with this process. There are different types of probate depending upon the type of assets left behind (e.g., real estate v. personal property) and the value of those assets. If you have lost a loved one and now need to go through the probate process, you will need to contact a probate attorney to help identify which type of probate is needed.
If you are concerned about your estate being stuck in probate after you have passed, or the amount of fees your loved ones will have to pay out of their inheritance in probate, discuss that with your estate planning attorney. They may recommend a trust so that probate may be avoided altogether. The only person who can make a recommendation on this is a knowledgeable estate planning attorney.
What is Probate?
Probate is the process of getting a will accepted by a court as legally being the last will of someone who is deceased. It is a process that has to be gone through to show that the will is indeed valid and legitimate. This process is important because it keeps forged documents from being allowed and potentiality letting someone claim an inheritance that does not rightfully belong to them. It also is verifying that there is no other will that is going to be found to be more valid than the one being accepted by the court.
More information about probate!
For more helpful information about probate please see our article:What Is Probate?
Executors and their role working with wills
An executor is a person you appoint in your will to go through the probate process and transfer your assets to your beneficiaries. Executors hold a lot of power as they will liquidate your entire estate (unless your will says otherwise), hold the funds in an account owned by your estate, pay creditors when needed, and ultimately distribute your assets. It is crucial that you trust your executor with no reservations.
It is up to the executor to carry out the final wishes of the person whose estate they are placed in charge of. Legally, they are required to act with ingenuity and work in the best interest of the estate. There are many responsibilities associated with this role and what is required will vary based on the wills contents, the laws of the state, and any unusual circumstances.
The goal of the executor should be to honor the final wishes of the deceased to the best of their ability. If you are a beneficiary of a will and are concerned that an executor is not upholding their duties under the law, you should speak with your own attorney regarding this matter.
Speak About Wills With An Experienced Estate Planning Attorney
You should be aware that everyone has different needs when it comes to drawing up a will, one size does not fit all. Estate planning considerations should be thought of when you decide to make a will. We at all cost, recommend that you avoid do-it-yourself, or diy estate planning before speaking to a lawyer familiar with wills and estate planning. Jelks Law is here to help you figure out what type of will and legal documents would be best for your situation. We can also help you with other aspects of estate planning. Feel free to call us today, we look forward to answering your questions and helping you plan for your family's future.