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Introduction to Wills


Wills are the most basic of estate planning documents. First introduced in medieval England, wills are basic instructions to a court how a deceased person wanted to distribute money and property. Everyone who is concerned how their estate will be divided should (at the very least) have a current and valid will.


What's In a Will?

Within a will, you describe several things:

1.) Who you are, and what right you have to give away property;

2.) A description of the property itself; and

3.) Exactly who you want it to be distributed to.

Wills are extremely easy to draw up. A qualified estate planning attorney, although recommended, is not always required. Many courts have accepted simple handwritten wills drawn up without any legal counsel. In addition, internet and software companies manufacture programs that create a will right from your home computer. Some states even allow an oral will to be acceptable; however, it is best to execute a formal will (just to be sure).


Publicity vs. Privacy

While its simplicity is a definite benefit, a will has serious disadvantages. For instance, a will is only an instruction to a court of law; it can be contested. Once entered into court, your will is public record, eliminating any privacy.

Relatives, friends, and associates can be reading a newspaper, read about your death and petition the court to share in your wealth. Family Court can be heartbreaking for many; not only do your loved ones have to cope with your death, but then have to battle other acquaintances and distant family members for the right to your estate.


Can a Will Be Invalid?

Unfortunately, when a will comes before a court, you are no longer around to vouch for it. A will can be found to be invalid for several reasons including:

  • Improper execution
  • The grantor was not mentally competent and able to understand what they were doing when they executed the will
  • The will was made under duress, or as a result of undue influence from another person.

If the will is found to be invalid for any reason, the court will usually treat it as though you had died intestate, or without a will. At that point, the particular state you reside in will decide how your property will be distributed. And if there are no living relatives, the property reverts back to the state.


Wills and Probate

The process of having an attorney present your will before a court is called probate. Groucho's probate lasted many years, and was especially expensive because of his celebrity status. Unlike living trusts, each and every will must go through the probate process. Probate usually ties up the estate anywhere from 9 months to 2 years, and can cost approximately 2-4% of your entire estate value. (For more information on probate, see The Perils of Probate.)


What Happens If You Become Incapacitated

Wills only become effective when you pass away; they do nothing for you while you're still alive. For instance, if you should become incompetent, and not have named a trustee or given power of attorney to someone else, the court will decide your proper medical care and distribution of assets. By the time you pass away and the will goes into effect, there may be little of your original estate left for your family.


Nothing Worse Than Death AND Taxes

Wills do nothing for estate taxes. Individuals that have assets, including real estate, over $2 million are subjected to extreme estate taxes that climb up as high as 46%. Plus, if you're married, a will may not maximize the Estate Tax Credit exemption for both individuals; in some cases, the $2 million exemption meant per individual is reduced to $2 million per couple.


Drafting Your Own Will

Each family's situation is different. For some, a will is sufficient. However, it is the most basic of estate planning documents. If you wish to preserve your wealth for generations to come, then you may want to combine a will with other advanced estate planning techniques.

While a will can be drafted with simple estate planning software, it's usually wise to have a professional estate attorney do it for you. Legal counsel may help you avoid many of the pitfalls associated with wills, and ensure that the chances it could be contested are reduced.


For more information on wills and how they can be drafted, contact today!




Why Plan Your Estate?
Introduction to Wills
Living Trusts
The Perils of Probate
Durable and Medical Power of Attorney
Taxes, taxes, taxes!
Creating a Second Estate
Dynasty Trusts
The Legacy Trust
Family Limited Partnerships (FLiPs)
Charitable Trusts
Building on a Solid Foundation
Funding Your Estate Plan
Choosing a Qualified Attorney
How You Can Plan for Your Own Estate

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