The Details – The Will, Instructions and Trusts

This part may be a little boring and I hope not too redundant but I will be discussing each section of the Thirty Documents listing. Learn something new in each section and use it or lose it, however you may need. I am learning and researching as I go along here too but in the end, we will all be better set up with better files.

Setting up a will is easy to put off and many people do not take the time to do so which can result in a substantial net loss to the survivor when going through probate court. If one dies without a will, you are considered intestate. This means that the court has jurisdiction. If there is a spouse with surviving relatives, everything could be divided among the survivors. We had a relative who had a considerable estate who died with no will and it was determined that there were 22 living survivors. Everything was divided equally among the cousins and their surviving children and hard telling how much was given up in legal fees to the court. Just saying. If there is no executor appointed or a conflict where more than one person steps forward, then the court decides who will execute the process. In the case of surviving children with no one appointed as caretakers then the children come under court supervision and a court appointed advocate will speak for them. They will have a case manager who will help to determine their placement. To alleviate all this, take a little time to create a will and especially to determine the care and placement of your children.

Here are three common types of wills:

  • Holographic: A holographic will is written in the in one’s own handwriting. It is considered valid but can be challenged if the intentions are in question. If this is the case, the court decides the validity and intent. The court will make the final decision, like it or not. Remember Howard Hughes? I think that there were multiple disputes on holographic wills with his estate. The fight lasted for years and the court system and lawyers were the ones of benefit it seems.

  • Attested: An attested will is prepared in a lawyer’s office, signed by the decedent and two objective witnesses. It can be on file in the courthouse and is considered the most valid. There are on-line programs where a legal will and testament can be made but if you want great advice and objectivity, find a good lawyer that you can trust and just do it. Putting it on file in the courthouse may be a bit much, but it’s safe and leading to no question who should be in charge. Keep three copies, one with the attorney, one given to the executor, and finally one in a locked safety deposit box at the bank. The one in the safety deposit box should be the original which is needed to process in the court. Be sure to give the executor legal access.

  • Some online sources are: https://willing.com/online, https://www.rocketlawyer.com/, https://www.legalzoom.com/, https://formswift.com/, https://www.totallegal.com/ – I do not know the  costs of such services nor the use of them, only that they exist with guidance and are legal. I do know of one lawyer who prepared his online and those of family members, using one of these sites. I also know of one lawyer who while he did not like that legal zoom was in existence, he thought that it was pretty good. Whether you choose on-line or prefer the personal touch, the important thing is to get it completed and stored with the full knowledge given to survivors that it is in place and where to have access. As life circumstances change, it is good to do an up-date.
  • Oral: An oral will is just that, one spoken to another person. Very few states accept these and it is considered non-enforceable in most of the US. Best put everything in writing.

Next is a simple letter of instruction. Where is the will? Where to take your remains? Do you have specific funeral instructions? One could also write a simple obit to keep in this file and up-date it once in a while. Are there specific things that you would like done at your funeral. Here is where you have a place to say what is on your heart. Put it in writing and put it to rest. Simple instructions will make it a lot easier for the family and eliminate doubt.

Trusts are set up as Revocable or Irrevocable, meaning just that. Revocable trusts can be changed and Irrevocable trusts means that property listed in the trust cannot be removed or changed. Revocable trusts often can become irrevocable as people age and become incapacitated, you must have this stated, obviously. What are the advantages? The trust becomes the legal vehicle and you actually do not own the property but it is placed in the trust. You become the trust manager, so to speak. Once it is irrevocable, nothing can be removed, revocable allows you to move, change, or add property at any time.Court advantages are that the property in the trust is no longer considered a part of your estate, thus it is shielded from taxes. If the value of the estate is no where near the Federal tax, then maybe there is no need to be concerned about the requirements. However, just my observation, with the use of IRA retirement accounts, almost everyone should look into a trust. Protect your investments. Failure to put any owned property in the trust will subject that property to probate taxes. Make sure that when you make property changes at any time to keep the trust up-dated.

In my experience, we had everything we owned in both our names so there was nothing to probate. Some of our property still has my spouse’s name upon it and I have been told to leave it that way until it is sold. Sounds good to me.

Source: 

https://www.dummies.com/personal-finance/estate-planning/revocable-versus-irrevocable-trusts/

My best advice is google to get the basics and then speak with a real live attorney!