Tilted Forum Project Discussion Community - View Single Post

cocounselor23 · 07-14-2004, 03:32 PM

Honestly, it is very simple and cheap to execute a will, but if you do not have one, each state has a probate/estate code that will decide how your estate will pass and who will be the executor. In most states, the surviving spouse has priority to be appointed as the executor and you petition the court for that appointment. The court will then typically issue a document (sometimes called "letters") that gives the surviving spouse the authority to deal with the assets. The benefit with a Will is that there is no question who will be the executor and you can also state that no bond will be required. Sometimes, without a Will, the court will ask the executor to post a bond.

Something else you shoud know. People are sometimes wary of the word probate, but in most states it is not a big deal, but there are ways to avoid probate altogether. Probate is usually opened when there is an asset that does not pass directly to a designated beneficiary, so if all of your assets have designated beneficiaries, no probate. For example, with a house, you might have it in joint tenancy versus tenancy in common. With joint tenancy, when one of the parties dies, the property passes automatically to the surviving joint tenant without any need for probate. Most spouses hold property this way. You can do the same with bank acounts by creating a Payable on Death (POD) designation. Some people create trusts, which also avoids probate and provides some other benefits. A lot of this depends on the size of your estate because there are some tax issues that might need to be considered.

There are some online sites and software you can use to create your own Will for next to nothing. The forms themselves are easy and cheap, but there are issues that need to be considered and that is why, in my opinion, it is best to consult an attorney. For example, we had a client that did their own Will and wanted to leave everything to his wife, but forgot that his children were on title with him on some real property and bank accounts. Evben though his Will stated the contrary, these assets passed to his children from a prior marriage and the spouse received very little.

Also, you mentioned a "living will" and this document basically states what your wishes are if you are certified as having an injury, disease, or illness which is not curable or reversible and which, in the physician's judgment, is a terminal condition, and you are basically being kept alive by artificial nourishment and life support. Some people opt to "pull the plug" in this case. Other people want life support to continue for a period of time. It helps to have this document because your family member sthen know your wishes. In conjunction with this docuemnt, we usually prepare a financial and health care power of attorney. These are also very important to have, They basically designate one person to be your agent if you are disabled. For example, if you were in a car accident and the physicians treating you wanted to know who had the decisions regarding your treatment, this document would make it clear that it is your spouse or whomever else you might designate. It would also allow your spouse to handle your financial affairs during your disability, without having to go through the courts.

I recommend calling a few estate planning attorneys in your area and seeing what they charge. You might be surprised. We charge $500.00 for a simple estate plan for 2 spouses with everything I mentioned above. I hope this helps.

07-14-2004, 03:32 PM	#4 (permalink)
cocounselor23 Upright	Wills Question Honestly, it is very simple and cheap to execute a will, but if you do not have one, each state has a probate/estate code that will decide how your estate will pass and who will be the executor. In most states, the surviving spouse has priority to be appointed as the executor and you petition the court for that appointment. The court will then typically issue a document (sometimes called "letters") that gives the surviving spouse the authority to deal with the assets. The benefit with a Will is that there is no question who will be the executor and you can also state that no bond will be required. Sometimes, without a Will, the court will ask the executor to post a bond. Something else you shoud know. People are sometimes wary of the word probate, but in most states it is not a big deal, but there are ways to avoid probate altogether. Probate is usually opened when there is an asset that does not pass directly to a designated beneficiary, so if all of your assets have designated beneficiaries, no probate. For example, with a house, you might have it in joint tenancy versus tenancy in common. With joint tenancy, when one of the parties dies, the property passes automatically to the surviving joint tenant without any need for probate. Most spouses hold property this way. You can do the same with bank acounts by creating a Payable on Death (POD) designation. Some people create trusts, which also avoids probate and provides some other benefits. A lot of this depends on the size of your estate because there are some tax issues that might need to be considered. There are some online sites and software you can use to create your own Will for next to nothing. The forms themselves are easy and cheap, but there are issues that need to be considered and that is why, in my opinion, it is best to consult an attorney. For example, we had a client that did their own Will and wanted to leave everything to his wife, but forgot that his children were on title with him on some real property and bank accounts. Evben though his Will stated the contrary, these assets passed to his children from a prior marriage and the spouse received very little. Also, you mentioned a "living will" and this document basically states what your wishes are if you are certified as having an injury, disease, or illness which is not curable or reversible and which, in the physician's judgment, is a terminal condition, and you are basically being kept alive by artificial nourishment and life support. Some people opt to "pull the plug" in this case. Other people want life support to continue for a period of time. It helps to have this document because your family member sthen know your wishes. In conjunction with this docuemnt, we usually prepare a financial and health care power of attorney. These are also very important to have, They basically designate one person to be your agent if you are disabled. For example, if you were in a car accident and the physicians treating you wanted to know who had the decisions regarding your treatment, this document would make it clear that it is your spouse or whomever else you might designate. It would also allow your spouse to handle your financial affairs during your disability, without having to go through the courts. I recommend calling a few estate planning attorneys in your area and seeing what they charge. You might be surprised. We charge $500.00 for a simple estate plan for 2 spouses with everything I mentioned above. I hope this helps.