Got A Will

Please see our original posting here.

PROBATE

After the testator has died, a probate proceeding may be initiated in court to determine the validity of the will or wills that the testator may have created, i.e., which will satisfy the legal requirements, and to appoint an executor. In most cases, during probate, at least one witness is called upon to testify or sign a “proof of witness” affidavit. In some jurisdictions, however, statutes may provide requirements for a “self-proving” will (must be met during the execution of the will), in which case witness testimony may be forgone during probate. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted. Often there is a time limit, usually 30 days, within which a will must be admitted to probate. Only an original will can be admitted to probate in the vast majority of jurisdictions – even the most accurate photocopy will not suffice.

It is a good idea that the testator give his executor the power to pay debts, taxes, and administration expenses (probate, etc.). Warren Burger’s will did not contain this, which wound up costing his estate thousands. This is not a consideration under English law, which provides that all such expenses will fall on the estate in any case

Please see the original article here.

MEANING FOR LAST WILL TESTIMATE

A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his estate and provides for the transfer of his property at death. For the devolution of property not disposed of by will, see inheritance  and intestacy.

In the strictest sense, a “will” has historically been limited to real property while “testament” applies only to dispositions of personal property (thus giving rise to the popular title of the document as “Last Will and Testament”), though this distinction is seldom observed today. A will may also create a testamentary trust that is effective only after the death of the testator.

Any person over the age of majority and of sound mind (having appropriate mental capacity) can draft his or her own will with or without the aid of an attorney. Additional requirements may vary, depending on the jurisdiction, but generally include the following requirements:

* The testator must clearly identify himself or herself as the maker of the will, and that a will is being made; this is commonly called “publication” of the will, and is typically satisfied by the words “last will and testament” on the face of the document.
* The testator should declare that he or she revokes all previous wills and codicils. Otherwise, a subsequent will revokes earlier wills and codicils only to the extent to which they are inconsistent. However, if a subsequent will is completely inconsistent with an earlier one, the earlier will is considered completely revoked by implication.
* The testator may demonstrate that he or she has the capacity to dispose of his or her property (“sound mind”), and does so freely and willingly.
* The testator must sign and date the will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries). There may be extra witnesses, these are called “supernumerary” witnesses, if there is a question as to an interested-party conflict. Some jurisdictions, notably Pennsylvania, have long abolished any requirement for witnesses. In the United States, Louisiana requires both attestation by two witnesses as well as notarization by a notary public. “Holographic” or handwritten wills generally require no witnesses to be valid.
* If witnesses are designated to receive property under the will they are witnesses, this has the effect, in many jurisdictions, of either (i) disallowing them to receive under the will, or (ii) invalidating their status as a witness. In a growing number of states in the United States, however, an interested party is only an improper witness as to the clauses that benefit him or her (for instance, in Illinois).
* The testator’s signature must be placed at the end of the will. If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator’s intentions.
* One or more beneficiaries (devisees, legatees) must generally be clearly stated in the text, but some jurisdictions allow a valid will that merely revokes a previous will, revokes a disposition in a previous will, or names an executor.

There is no legal requirement that a will be drawn up by a lawyer, although there are pitfalls into which home-made wills can fall. The person who makes a will is not available to explain him or herself, or to correct any technical deficiency or error in expression, when it comes into effect on that person’s death, and so there is little room for mistake. A common error (for example) in the execution of home-made wills in England is to use a beneficiary (typically a spouse or other close family members) as a witness – although this has the effect in law of disinheriting the witness regardless of the provisions of the will.

Some jurisdictions recognize a holographic will, made out entirely in the testator’s own hand, or in some modern formulations, with material provisions in the testator’s hand. The distinctive feature of a holographic will is less that it is handwritten by the testator and often that it need not be witnessed. In England, the formalities of wills are relaxed for soldiers who express their wishes on active service; any such will is known as a serviceman’s will. A minority of jurisdictions even recognize the validity of nuncupative wills (oral wills), particularly for military personnel or merchant sailors. However, there are often constraints on the disposition of property if such an oral will is used.

A will may not include a requirement that an heir commit an illegal, immoral, or other act against public policy as a condition of receipt. In community property jurisdictions, a will cannot be used to disinherit a surviving spouse, who is entitled to at least a portion of the testator’s estate. In the United States, children may be disinherited by a parent’s will, except in Louisiana, where a minimum share is guaranteed to surviving children. Many civil law countries follow a similar rule. In England, a will may disinherit a spouse, but close relations, including spouses, excluded from a will may apply to the court for provision to be made for them at the court’s discretion.

Types of wills generally include:

* nuncupative (non-culpatory) will – oral or dictated; often limited to sailors or military personnel
* holographic will – written in the hand of the testator; in many jurisdictions, the signature and the material terms of the holographic will must be in the handwriting of the testator.[1]
* selflf-proved will – in solemn form with affidavits of subscribing witnesses to avoid probate
* notarial will – will in public form and prepared by a civil-law notary (civil-law jurisdictions and Louisiana, United States)
* mystic will – sealed until death
* serviceman’s will – will of person in active-duty military service and usually lacking certain formalities, particularly under English law
* reciprocal/mirror/mutual/husband and wife wills – wills made by two or more parties (typically spouses) that make similar or identical provisions in favor of each other
* unsolemn will – will in which the executor is unnamed
* will in solemn form – signed by testator and witnesses

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If you are unfamiliar with what a Power of attorney is please review this link first…

WHAT IS A POWER OF ATTORNEY?

A power of attorney (POA) or letter of attorney in common law systems or mandate in civil law systems is an authorization to act on someone else’s behalf in a legal or business matter. The person authorizing the other to act is the principal, granter or donor (of the power), and the one authorized to act is the agent, the attorney-in-fact,[1]  or in many Common Law jurisdictions, simply the attorney.

TYPES OF POWER OF ATTORNEY

A power of attorney may be special or limited to one specified act or type of act, or it may be general, and whatever it defines as its scope is what a court will enforce as being its scope. (It may also be limited as to time.) A person holding a general power of attorney was often referred to as an attorney general. Under the common law, a power of attorney becomes ineffective if its grantor dies or becomes “incapacitated,” meaning unable to grant such a power, because of physical injury or mental illness, for example, unless the grantor (or principal) specifies that the power of attorney will continue to be effective even if the grantor becomes incapacitated (but any such power ends when the grantor dies). This type of power of attorney is called Power of Attorney with Durable Provisions or Enduring power of attorney.

In some jurisdictions, a Durable Power of attorney can also be a “Health Care Power of Attorney”, an advance directive which empowers the attorney-in-fact (proxy) to make health-care decisions for the grantor, up to and including terminating care and ending life supports that are keeping a critically and terminally ill patient alive. Health care decisions include the power to consent, refuse consent or withdraw consent to any type of medical care, treatment, service or procedure.[2] A living will is a written statement of a person’s health care and medical wishes but does not appoint another person to make health care decisions.[3] New York State has enacted a Health Care Proxy law that requires a separate document be prepared appointing one as your health care agent.

People with mental illness may prepare Psychiatric Advance Directives (PADs in some U.S. states) or Ulysses contracts as they are called in Canada. Ulysses contracts are powers of attorney that enable a patient to dictate preferences for care before becoming incapacitated by recurring mental illness. Although they are not used very often, there is speculation in some of the academic literature as to whether or not these advance directives are empowering for people with mental illness (Journal of Ethics in Mental Health 2006-1).

In some U.S. states and other jurisdictions it is possible to grant a springing power of attorney; i.e., a power that only takes effect after the incapacity of the grantor or some other definite future act or circumstance. After such incapacitation the power is identical to a durable power, but cannot be invoked before the incapacity. This may be used to allow a spouse or family member to manage the grantor’s affairs in case illness or injury makes the grantor unable to act, without the power of an attorney-in-fact before the incapacity occurs. If a springing power is used, care should be given to specify exactly how and when the power springs into effect. As the result of privacy legislation in the U.S., medical doctors will often not reveal information relating to capacity of the principal unless the power of attorney specifically authorizes them to do so.

Determining whether or not the principal is “disabled” enough for the power of attorney to “spring” into action is a formal process. Springing powers of attorney are not automatic, and institutions may refuse to work with the attorney-in-fact. Disputes are then resolved in court, which is of course a costly, and usually unwanted, procedure.

Unless the power of attorney has been made irrevocable (by its own terms or by some legal principle), the grantor may revoke the power of attorney by telling the attorney-in-fact it is revoked; however, if the principal does not inform third parties and it is reasonable for the third parties to rely upon the power of attorney being in force, the principal may still be bound by the acts of the agent, though the agent may also be liable for such unauthorized acts.

Many standardized forms are available for various kinds of powers of attorney, and many organizations provide them for their clients, customers, patients, employees, or members. In some states statutory power of attorney forms are available. Some individuals have used powers of attorney to unscrupulously waste or steal the assets of vulnerable individuals such as the elderly (see elder abuse).

Robert’s Rules of Order notes that proxy voting involves granting a power of attorney. The term “proxy” refers to both the power of attorney itself and the person to whom it is
granted.

ORAL AND WRITTEN POWERS OF ATTORNEY

A power of attorney may be oral and whether witnessed or not, will hold up in court, the same as if it were in writing. For some purposes, the law requires a power of attorney to be in writing. Many institutions, such as hospitals, banks and, in the United States, the Internal Revenue Service, require a power of attorney to be in writing before they will honor it, and they will usually keep an original copy for their records. In some countries and situations, an Electronic Power of Attorney can also be considered valid

POWER OF ATTORNEY IN FINANCE

In financial situations wherein a principal requests a securities broker to perform extensive investment functions on the principal’s behalf, independent of the principal’s advice, power of attorney must be formally granted to the broker to trade in the principal’s account. This rule also applies to principals who instruct their brokers to perform certain specific trades and principals who trust their brokers to perform certain trades in the principal’s best interest.

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Just turn 40? What’s Next?

You’ve started to acquire assets, (car, house, boat, condo, airplane, investment properties, etc.) Your net worth value is growing and life is good, but what next? Well that is the problem with life, you can plan all you would like but when it comes to the actual “What is next” you can’t be sure of anything.

What you need to do is plan. You need to start your estate planning and making arrangements to ensure that if something were to happen, all your hard work, assets and money go to where you had intended! But how?..?..?

The best thing you can do is to start educating yourself, which you can do in just a few minutes by reading our free online Estate Planning Handbook.

Once you have educated yourself you may be interested in some of our free online offers like a FREE ASSET MANAGEMENT WORK SHEET, and also the Selecting Your Child(s) Guardian.

For more information please visit http://www.gotawill.com for help and step by step directions and instructions on securing your assets and the safety of your family. The best part is it can all be done from the safety and comfort of your own home.

Do it for them, Do it for you, Do it now! For the ones you love – http://www.gotawill.com

Planning a Family Vacation?  Maybe taking the kids to see the Grand Canyon or to Disney world?  We have all been down that road, everything is planned right down to the 2 seconds it takes to check your watch.

1. Bags Packed and Ready
2. 7:15AM Leave for airport
3. 7:42AM Stop for breakfast (4 minutes and 10 seconds to eat)
4. 7:47AM Back on the Road

Fact: No matter how hard you try, you will never be able to plan for life.  Everyday, every single breath is nothing more then a gift.  Natural Disasters, car accidents, or even illness can strike at anytime, and it can be        devastating!

So I have said it, vacations, trips, holidays, dinners, all of this can be planned for but what about the life we all live everyday?  If you can’t plan this what can you do?  It is called being prepared.  Do it for them, do it for you, do it now!  For more information please read our Estate Planning Handbook.  It is completely free and will give you some education about how you can plan for the unplannable!

Interactive Will Forms Internet Download

The interactive Will Forms Internet Download comes with full audio instructions on how to fill out your will. You will receive 17 Executor, Estate Planning and Life Forms.

Each form comes with audio and video presentations to make these usually difficult tasks simple and easy to follow.

This interactive download includes the following:

Documents For Executors Form Bundle:

• Request For A Death Certificate
• Affidavit of Domicile
• Executors Letter To Financial Institutions
• Financial Instantiation List and Accounts
• Notice To Insurance Companies
• Life Insurance Claim Request
• Asset management Form Worksheet

Estate Planning Forms:

• Last Will and Testament
• Living Will
• Revocable Living Trust
• Power Of Attorney

Life Forms Bundle:

• Child Guardian Questionnaire
• Authorization for Foreign Travel with a Minor
• Authorization to Drive a Motor Vehicle
• Child Care Agreement
• Elder Care and Long Term Care Instructions
• Pet Care Agreement

This download is a single file download executable and is run as an interactive CD-Rom.

Price: $12.95

For some women the day seems to never end.  You wake up, get the kids ready for school, clean the house, go to your job, pickup the kids from their after school activities all while looking fantastic!

Your physical appearance has been taken care, what about the FAMILY’S SECURITY, in case of an untimely tragedy occurring, do you have all your plans and wishes written down and legally binding to make sure they are followed?  Do you know who is going to be in charge of your children and who will make sure their needs are met if you are unable to.  This is a subject that gets overlooked all too often and sadly it is a very important one.

Please share this valuable information with your loved ones and friends.  For the price of some shampoo and the click of a mouse you can have the security you are your family deserve, and you can do it from the privacy of your own home with out intuitive interactive video download that will walk you through step by step how to ensure no matter what your family will be safe.  If you would like more information please visit out About page or Estate Planning Handbook.

Interactive Will Forms Internet Download

The interactive Will Forms Internet Download comes with full audio instructions on how to fill out your will. You will receive 17 Executor, Estate Planning and Life Forms.

Each form comes with audio and video presentations to make these usually difficult tasks simple and easy to follow.

This interactive download includes the following:

Documents For Executors Form Bundle:

• Request For A Death Certificate
• Affidavit of Domicile
• Executors Letter To Financial Institutions
• Financial Instantiation List and Accounts
• Notice To Insurance Companies
• Life Insurance Claim Request
• Asset management Form Worksheet

Estate Planning Forms:

• Last Will and Testament
• Living Will
• Revocable Living Trust
• Power Of Attorney

Life Forms Bundle:

• Child Guardian Questionnaire
• Authorization for Foreign Travel with a Minor
• Authorization to Drive a Motor Vehicle
• Child Care Agreement
• Elder Care and Long Term Care Instructions
• Pet Care Agreement

This download is a single file download executable and is run as an interactive CD-Rom.

Price: $12.95

Fact: Montana has the highest motor vehicle death rate in America!

Fact: Montana is the top ranked state, that is #1 out of 50 for homicide of people between the ages 18-24 as well as the ages of 50-64?

There is a lot of information that people don’t know and that’s what makes this world such a scary place.  The question you need to ask yourself is;

If a tragedy like this were to happen to my family, are we prepared?

All it takes is one second to incapacitated and it may not even be your fault.  It could be the reckless drunk driver or the tired mother coming back from soccer practice who just took their eyes off the road for one second.  If it is because they wanted to grab another cold one for the drive home or because little Timmy was kicking the seat doesn’t matter.  What matters is that you are confident if something horrific like this were to happen to you, that you are prepared.  There are some very easy questions you can ask yourself to see if you are prepared.

• Do you currently have a POA Power of Attorney in case of tragedy for your loved ones?
• Do you have a will or a legal document stating who you would like to take care of your children?
• Is someone going to be around to help you manage your finances?

If you answered no to any of these questions then I highly suggest you take a few minutes to look around our site.  Did you know that if you are unable to care for your children that the other parent, no matter how fit or what circumstances they are in will gain full custody, and if there is no other parent the state is then brought in to make the decisions?  That means if you children are lucky they will end up in a decent foster home, but there is no guarantee they will even stay together as a family, they could be split apart.

If this is something you no longer want to weigh on your mind see below for the buy here button.  Our Video Tutorial will walk you through how to secure all your finances and the security of your family.  It will guide you through filling out the documents and how to make them legally binding.  It could even save your family one day.  What are you waiting for…

Interactive Will Forms Internet Download

The interactive Will Forms Internet Download comes with full audio instructions on how to fill out your will. You will receive 17 Executor, Estate Planning and Life Forms.

Each form comes with audio and video presentations to make these usually difficult tasks simple and easy to follow.

This interactive download includes the following:

Documents For Executors Form Bundle:

• Request For A Death Certificate
• Affidavit of Domicile
• Executors Letter To Financial Institutions
• Financial Instantiation List and Accounts
• Notice To Insurance Companies
• Life Insurance Claim Request
• Asset management Form Worksheet

Estate Planning Forms:

• Last Will and Testament
• Living Will
• Revocable Living Trust
• Power Of Attorney

Life Forms Bundle:

• Child Guardian Questionnaire
• Authorization for Foreign Travel with a Minor
• Authorization to Drive a Motor Vehicle
• Child Care Agreement
• Elder Care and Long Term Care Instructions
• Pet Care Agreement

This download is a single file download executable and is run as an interactive CD-Rom.

Price: $12.95

Who can make a last will?

Under the Uniform Probate Law (model law passed by professional association) and the laws of most US states, any individual 18 or more years of age who is of sound mind may make a will.

Must a will be typed or can it be hand-written?

With the exception of what are called “holographic” wills, a last will must be typed or printed as opposed to hand-written. The general requirements of a “holographic” will are that it be signed by the maker and that “material portions” of the document are in the maker’s handwriting. See Montana Probate Code Section 72-2-522(c)(2) for an example of state law on this point. Not every state allows hand-written holographic wills so please check the requirements of your state before attempting to prepare a holographic will.

Other than “holographic” wills, what are the general requirements for execution of a valid last will?

The general requirements are as follows: (a) the document must be written (meaning typed or printed), (b) signed by the maker, and (c) signed by two witnesses who were present to witness the execution of the document by the maker and also witnessed each other sign the document. Vermont requires three witnesses instead of two. Louisiana requires that the maker affix his signature to every page of the document on which material provisions are found in addition to the last page of the document and, also, requires that the execution of the maker of a last will be attested to by a notary.

Who may serve as a witness to a last will?

Generally, any mentally competent person over the age of 18 can serve as a witness. However, most states have some restrictions against beneficiaries of the will also serving as a witness. Please click on your state from the list in the upper right-hand column for more information. Regardless of whether or not your state has a statute prohibiting or discouraging beneficiaries from serving as a witness, it is always best to have individuals who are not named as a beneficiary or executor in the will serve as witnesses. The reason for this is to remove any potential implication that the witness exerted influence over the maker of the will when the document was executed.

How many witnesses are required?

In all states except Vermont, two (2) witnesses are required for a valid last will. In Vermont, three (3) witnesses are required. If your last will is notarized, the notary does NOT count as one of the witnesses.

Must my last will be notarized?

Only in the State of Louisiana must a last will be notarized. In all other states, notarization is not required but it is recommended. By notarizing a last will, the document becomes “self-proving”. This means that there are no additional requirements necessary in order to get the document admitted to probate court after the death of the maker. If a last will is not notarized, then the witnesses must sign declarations as to the authenticity of the document which are filed with the last will in the probate court.

Signature upon a last will?

In all cases, a last will must be executed on the last page thereof by the maker (excluding any final page that consists solely of a notary certification). It is recommended, but not required, that the maker also sign or initial the bottom of every page of his or her last will as well executing the final page. However, in the State of Louisiana only, the maker must sign every page of his or her last will.

What is a guardian or conservator and what is the difference between these terms?

If someone becomes seriously impaired because of mental illness, mental deficiency, serious physical disability, chronic use of drugs, chronic intoxication, or other disability, guardianship proceedings may have to be commenced for such person. Guardianship proceedings are usually instituted when the protected person lacks the sufficient understanding or capability to make responsible decisions for themselves and their health. Usually these people are referred to as “incapacitated persons” and the term “ward” refers to the person who requires a guardian. Minor children may also need to have a guardian appointed if their parents can no longer serve or are found to be unfit in that capacity.

Conservatorship proceedings are commenced for a person who cannot effectively manage their estate because of lack of ability or are otherwise incapacitated. These people are referred to as “protected persons”. The difference between the two is that the guardian handles the actual person such as living arrangements, health care, and social intervention, while the conservator handles the assets of the person. In most cases, the conservator and guardian are the same person.

When the protected person passes on, the conservator has certain duties such as delivery of the will to the court for safekeeping, informing the personal representative (executor/executrix) that all assets have been collected and protected, and to assist the personal representative after the protected person has passed on.

Is there an advantage to naming a corporate trustee?
If you do not believe that you have the ability or time to manage your own trust, it is appropriate to name a bank or other financial institution to do so. While recognizing that corporate trustees are very experienced, you must also recognize that there is a cost involved. Such fees are very reasonable considering the amount of expertise that corporate trustees have.

Who takes control of my living trust if I become incapacitated?
If you are married and your spouse is named as a co-trustee, such spouse would have instant and complete control of your trust. If you and your spouse both become incapacitated, then the person you named as alternate or successor trustee would step in and take care of your trust. The successor trustee can be a spouse, other family member, friend, or corporation. The successor trustee can use your assets to pay bills, manage your financial affairs, and oversee your care for as long as necessary. If you recover from your illness or incapacity, you would immediately regain control of your trust. Upon your passing, the successor trustee would pay debts, distribute your assets according to your wishes in the trust, and would take all necessary steps to administer the wishes contained in such trust. This is usually a quick process that is done without court intervention or the necessity of probate.

Does the living trust end after I die?
A living trust can continue after your death if you draft such intentions in the trust. The assets stay in your trust and are managed by the person or corporate trustee you have chosen until your beneficiaries reach the ages you have chosen for them to inherit the proceeds. For example, if you should pass away and your son or daughter is 14 years old and you have provided that such son or daughter receive proceeds until his or her 25th birthday, the successor trustee would manage the trust funds, according to the laws of your state, until such son or daughter reaches the age of 25. At that time, the remaining proceeds would be left to your son or daughter since they have reached the age of majority. A living trust can also be used to tend to the special needs of another family member after you are gone.

How can a living trust save on estate taxes?
The present law states that if you should pass away in 2002 or 2003 and your estate is valued at more than $1,000,000.00, at least 41% must be paid in federal estate taxes. However, if you are married, your living trust may provide for gifts from you and your spouse to various loved ones. The amount removed from your estate up to $2,000,000.00 could pass tax-free. This could be a significant saving well in excess of $400,000. Most importantly, if you have an estate that is worth more than one million dollars, you absolutely should consult with an estate-planning professional who is well versed in the area of estate tax law.

How does a trust in a will compare to a living trust?
Trusts that are set up in wills are created to provide for your family members, loved ones, and any minor children when you die so that they inherit at an age designated by you. In other words, some of the funds are used while they are in their minority, and then the remaining funds are disbursed and distributed to them when they reach the age of majority which could be any age designated by you. Trusts may also provide for succeeding generations of your family to inherit and may even provide for descendants yet unborn. These trusts do not go into effect until you die. A living trust, however, can take affect at the moment you set the trust into existence. With a trust that is contained in a will, there is usually no protection from you losing control of your assets if you become incapacitated. However, if you have a living trust, you have protection because you can designate a co-trustee or successor trustee.

How expensive is it to have a living trust prepared?
It is usually not very expensive to prepare a living trust. It depends on how complicated your estate plan is, how much money is contained in your estate, how much property you have, and how many people you wish to have designated as trustees, beneficiaries, etc. The important thing to do is to ask your attorney for an estimate before you have the actual paperwork prepared. You should recognize that when you consider that a properly drafted trust will avoid family fights inside and outside of court, it is a lot less expensive when compared to the actual court costs and attorneys fees that can occur when you do not have a living trust and then become incapacitated.

Who should I contact to prepare a living trust?
It has been recommended throughout this booklet that you obtain the services of a respected and knowledgeable attorney who is experienced in the area of trusts, estate, and probate. An attorney experienced in the area of estate planning can take care of your living trust and estate planning needs so that you are assured of having things occur as you intended. You would not hire a patent attorney to handle your living trust just as you would not hire a brain specialist to perform surgery on your foot. In some states, there are paralegals or independent legal technicians who can prepare trust documents but they cannot give legal advice. To make sure that you have a will or trust that is appropriate under your own state laws, you should seek the services of an attorney in your state.

Is it wise to have a will prepared even if I have a revocable living trust?
The answer to this question is yes because a will would come into effect in case you have forgotten to transfer a certain asset to your trust. If you pass away, a will can provide for any property or assets that you may have forgotten about with respect to your trust. It may be necessary for that forgotten asset to go through probate first, but it can then be distributed as part of your living trust.