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"Why should I have a lawyer do my will? There
are plenty of do-it-yourself kits I could use."
The form kits for wills, living wills, etc. are very
simple. That may be fine if your situation is simple:
you are single, have no kids, don't have a lot of assets,
don't have any special needs or disabilities, etc. But
if your situation is complex, you need to have a will
or living will crafted to fit your situation.
Also, keep in mind that when you consult with an attorney,
what you are paying for is not the form used, but rather
the advice and counseling that goes along with it. For
example, an attorney might point out that if you have
minor children or may have children in the near term,
you should include a testamentary trust to hold any
assets they inherit if you and your spouse both die.
This avoids having to run their assets through the Probate
Court which is time consuming and expensive. It also
allows you to control things like: who serves as trustee
for them, how much is paid per month to the family who
raises them, the age at which they get free reign over
all of their inheritance, and the purposes for which
the principal balance of their inheritance may be pulled
out early (college tuition or medical needs, for example).
Here are some other complicating factors that may need
to be addressed in your estate planning documents:
- kids by prior marriages
- premarital or postmarital agreements in place
- couples that are separated but not divorced
- large expected inheritances
- certain family members that you don't want to raise
your kids if something happens to you
- a history of discord among possible claimants to
your estate
- a desire to have someone other than your next of
kin act as guardian if you are incapacitated
- special needs or disabled kids that will require
special care
- certain property that needs to stay in one spouse's
family
- the estate is large and you need to avoid unnecessary
estate tax liability, etc.
"Why do I need a will?"
Getting everything approved by the Probate Court
is expensive and time consuming
If you don’t have a will, the court chooses
the person to administer your estate and monitors
everything they do. This person must get the court’s
approval for every action he or she takes. This is
expensive and time consuming.
Your children may receive distributions at too
young an age
If you die without a will, once your assets are divided
according to the intestacy laws and your children
reach age 18, the funds are theirs to use as they
want. This could result in their inheritance being
squandered, taken by creditors, or divided with an
ex-spouse if they get divorced. Also, their inheritance
will be managed by a court appointed trustee until
they turn 18. This trustee will have to get approval
from the court for everything. The expenses of this
come out of the child’s inheritance money. By
creating a contingent trust in your will you can appoint
a trustee of your choosing and make the management
of your child’s inheritance simpler and less
expensive.
So that your assets go to the people you want
to receive them
If you do not specify who inherits your assets in
a will, the intestacy laws will govern. The chances
that the intestacy laws will divide your property
just the way you would have are very low.
Equal distributions to children may not be fair
If you die without a will, and leave behind two children
and no spouse, those two children will share equally
in your estate. What if one of your children is 35
and a millionaire Wall Street banker, and the other
is a freshman in college?
Your children’s creditors may take their
inheritance
With a will you can help your children plan around
this situation.
The court will appoint the guardian of your minor
children without your input
If you die without a will, the court will appoint
the guardian of your minor children without any input
from you. If you make a recommendation in your will,
that can guide the court.
You may give the IRS more than you should
Intestacy distributions do not incorporate any tax
planning. As a result, more assets than necessary
may be diverted from your heirs into the federal and
state treasury.
And don’t forget to update it!
It is important to review your will every few years
and after major events such as weddings, the birth
of a child, a divorce, a change of residence, or major
business events. When drafting your will you should
attempt to look ahead 3 - 5 years, and then plan on
revisiting your will at that time.
"What other documents do I need besides a will?"
Durable Statutory Power of Attorney - allows
an individual named by you to manage your financial
affairs if you become incapacitated.
Living Will (a.k.a. Directive to Physicians)
- lays out what medical procedures you want done to
save your life and at what point you would want to
be taken off of life support.
Health Care Power of Attorney - gives an individual
named by you the power to enforce your Living Will
and make other health care decisions for you if you
become incapacitated.
Appointment of Guardian - may not be necessary
if you have all of the above documents, but can still
be advisable if you are worried that your children
may argue over who should be guardian, or if you want
to advise the court of a person or persons who should
not be named your guardian.
"I have more questions..."
Please contact us.
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