http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/index.html LawInfo - Legal Resource Center offers free legal forms and free legal documents that is designed to help consumers and businesses resolve their legal issues http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-happens-if-a-person-dies-with-a-will.html In general, after the testator (the person with the Will) dies, the person named in the Will to carry out its terms (an executor or personal representative) files the original Will and other legal papers in a probate court, which is usually located in the county where the testator lived. The executor signs a petition to the probate court describing the circumstances under which the testator executed the Will, naming his or her heirs (the persons who would receive the decedent`s estate), describing the property interests passing under the Will, the legacies received by the beneficiaries and asking the court to admit the Will to probate. Unless they specifically agree to waive notice, each of the heirs must receive formal legal notice that a document purporting to be the Will has been offered for probate. The family members are given an opportunity to appear in court to contest (object to the Will); if they do not contest the Will and the probate judge finds the Will in order, he/she generally admits it to probate and formally appoints the executor. After probate, it is usually difficult for family members to upset a Will. In most states, it is possible for very small estates to be distributed through summary administration or small estates procedures. These procedures are less formal than traditional process of probate. Mon, 31 Mar 2008 13:59:02 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/are-there-provisions-that-cannot-be-put-in-on.html Generally speaking the courts will allow a provision in a will as long as that provision does not violate public policy. Therefore, it is likely a court will allow one to put a provision in a will that says that a beneficiary will not inherit from the estate if the beneficiary does not marry a Catholic person. This is because the public policy is that people should be allowed to get married and that condition would not prevent a Catholic person from not marrying at all. However, the courts would probably not allow provisions stating a beneficiary could not inherit from the estate unless the beneficiary divorces the beneficiary`s wife or if the beneficiary never marries, since this would be a violation of public policy. Also, a will maker cannot leave the estate directly to a pet. If one wants to leave one`s money to a pet, one must assign a trustee and then instruct the trustee to use the money for the pet`s care. For more information as to whether a certain provision you would like to be included in your will is contestable, please contact an attorney. Wills FAQs Thu, 27 Mar 2008 11:55:02 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/can-anyone-be-named-as-a-beneficiary.html There are important restrictions on naming beneficiaries. In many states spouses have certain automatic rights that cannot be compromised in the Will. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/can-children-inherit-from-a-foster-parent-or.html A child can inherit from a foster parent or stepparent, who died without a will, even though the foster parent or stepparent did not adopt the child if the following criteria are met. (1) The relationship between the child and the stepparent or foster parent commenced when the child was still a minor and continued throughout their lifetimes. (2) The foster parent or stepparent would have adopted the child if there were not a legal barrier preventing the foster parent or stepparent to do so. For more information as to whether a particular child can inherit from a foster parent or stepparent, please contact an attorney. Wills FAQs Mon, 04 Jun 2007 21:51:22 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/can-i-disinherit-relatives-i-dont-like.html Yes, you can disinherit anyone from your Will as long as the laws of the state in which you reside when you make your Will allow it. Normally, you can disinherit any distant relative, even children. However, some states dictate that a spouse cannot be completely disinherited. Because laws differ from state to state, it would probably be in your best interest to consult with an attorney on this matter. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/can-i-witness-a-will-if-i-am-a-beneficiary.html No. Most, if not all states have laws that automatically disinherit any person named as a beneficiary in a Will if that same person is also a witness. The reason for this is that a witness may not be truthful in his or her statements regarding the execution of the Will if the witness is also a beneficiary (e.g., they may not be truthful about whether the Testator was of sound mind and body, etc.). In this light, be sure that if you are, or may be, a beneficiary under the Will, you do not witness it. Instead, have another person who definitely is not a beneficiary witness the Will or you will most likely be disinherited from the Will. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/can-someone-who-is-incapacitated-write-a-will.html For a Will to be valid, the person writing it must be competent at least to the point of knowing who pays or her family is and what property he or she owns. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/can-spouses-write-a-joint-will.html Spouses can write a joint Will. However, it may not be the best option because of the limits it could put on the surviving spouse. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/do-executors-get-paid.html Usually executors are paid according to state laws that provide for commissions depending on the size of the estate. However, they may be paid an amount based on the courts assessment of reasonable compensation. If a person expects their executor to serve without compensation that should be stated in the Will. Wills FAQs Tue, 19 Aug 2008 14:16:07 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/do-my-children-need-a-will.html No. Minors are not allowed to execute a Will. Young, childless adults with few assets may be able to hold property in joint names or to pass property automatically at death to named persons. But, it is still a good idea for the young, childless adult to draft a Will to assure that his/her needs are carried out as they desire with as few complications as possible. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/does-filing-for-a-divorce-end-a-spouses-right.html Simply filing for divorce or legal separation does not automatically disinherit a spouse. Most states give a spouse the right to your assets under elective share or community property laws. This makes it very difficult to prevent your spouse from claiming a share of your estate regardless of your Will. A final divorce decree does end spousal rights. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/does-the-will-have-to-be-in-a-certain-form.html In general, the Will must be in writing and signed by the testator. Valid Wills have been executed on pieces of scrap paper. Meeting the signing and witnessing standards established by state law is more important than the appearance of a Will. A Will scribbled on a napkin can be admitted to probate as long as it contains all of the elements of a valid Will. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/if-i-set-up-a-living-trust-do-i-still-need-a.html Yes. Your Will serves as a back up for assets that you either don`t or are not able to transfer to your Living Trust. Any asset not transferred to the Trust will not pass under the terms of the Trust document. However, in your Will, you can include a clause that names someone to inherit assets that you haven`t left to anyone else. If you don`t have a Will, any asset that isn`t transferred by your Living Trust will go to your closest relatives in an order determined by state law. These laws may not distribute your assets in the way you would have chosen. The Will is how you can assure that your assets that are not covered under the Trust are distributed according to your wishes. Wills FAQs Mon, 04 Jun 2007 21:51:22 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/is-a-lawyer-necessary-for-drafting-a-will.html Wills made without lawyers can be legally sound if the proper procedures are followed. For people with relatively simple estates, self­help books and computer software may help. However, it would be in your best interest to consult with an attorney, to minimize possible complications. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/is-it-necessary-for-me-to-have-the-executor-o.html The only time bonding your Executor is necessary is if you do not totally trust him/her with all of your assets. If you have the Executor bonded, it normally costs the estate about $200 to $400 in an estate of $200,000. Remember, it is the Executor`s duty to consolidate the Estate, which usually means liquidating your assets into cash and eventually distributing them to the beneficiaries. At some time, the Executor will have a substantial amount of cash available to him or her in the Estate bank account. Bonding is essentially an insurance policy for the protection of your beneficiaries because if the Executor steals from the Estate, the beneficiaries can require the bonding company to reimburse their losses. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/should-i-prepare-a-short-will-or-a-long-one.html A non­complicated (short) Will is used to give all assets equally to one or more heirs. A long will provides much greater flexibility in how assets are divided, includes a disinheritance clause, and a Testamentary Trust provision (used to manage assets of minor beneficiaries so a guardianship does not have to be established). If you are a single person or one with uncomplicated asset disbursement issues, a short will could possibly fulfill your needs. However, if you have many assets, are married, have children or have other more complicated asset disbursement issues, you may want to consider using the long Will instead. It may also be in your best interest to seek the advice of an estate planning attorney in your area. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/under-what-circumstances-can-an-adopted-child.html Adopted children are considered children of their adopted parents for purposes of inheriting from an estate where there was no will. Adopted children can only inherit from the child`s natural parents` estate when the natural parent left no will, under the following circumstances: (1) The natural parent and adopted child lived together at any time as parent and child or the natural parent was married to or lived with the other natural parent and then died before the adopted child`s birth. (2) The adopted child was adopted by either of the natural parents` spouses or after either of the natural parents had died. For more information as to whether a particular adopted person can inherit from a parent who left no will, please contact an attorney. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-are-some-guidelines-in-writing-up-a-will.html The following are some guidelines in writing up a will. The first one is to try to avoid using preprinted forms. The second one is to use the same typewriter and typeface for the whole document. This is because any changes to the document can leave room for a claim that someone other than the testator, who is the person writing the will, wrote the part that has the different typeface. Also, no blank spaces should be left in a will, since that could leave room for someone to write in additional information. The will should be drafted in a clear manner so the testator`s intent is perfectly clear to all that are involved. The language should be simple. All pages of the will should be signed and dated. The will`s witnesses ideally should be younger than the testator and not one of the will`s inheritors. Witnesses should be told that they are witnessing the signing of the will and might be called to testify to that fact. Witnesses, however, are not obligated to read the will or be informed of its contents. Codicils should be used to make minor changes to the will. The full names, addresses and relationships to the testators of all the inheritors should be included in the will. Wills FAQs Wed, 09 Apr 2008 04:32:27 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-are-some-of-the-basic-requirements-for-a.html A valid will must be a written form. It must be signed that person making the Will. And it must be witnessed by two or three competent persons, unless it`s a holographic Will (written entirely in testator`s own handwriting). Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-are-some-of-the-disadvantages-of-using-p.html Preprinted will forms usually do not fulfill the needs of the person writing the will. Also, if part of the form is preprinted, part of it is typed and another part of it is handwritten someone might be able to contest the will claiming part of it had been forged. This is because any change in a will leaves room for doubt as to whether the testator, who is the person writing the will, made the changes or if someone else did. People tend to cross out, delete or add words to these preprinted forms. It can be hard to ascertain who made these changes and why. This problem also puts the will in jeopardy of being contested. Also, these preprinted forms are general forms and do not take into account the specific needs of the estate. Therefore, property may accidentally be left out, inheritors might not be included, and possible tax advantages not taken into account. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-are-some-of-the-various-types-of-wills.html There are various types of wills. An ambulatory will is a will that a person can change during that person`s lifetime. A double will is one in which two people join together, each leaving that person`s property and estate to the other person. The surviving person then owns both estates. This type of will is also sometimes called a counter will, joint and mutual will, or reciprocal will. Holographic wills are ones that are entirely handwritten, dated and signed by the person whose will it is. A living will is one that authorizes the withholding or cessation of life­sustaining medical treatments from an individual, who has been too incapacitated due to a life threatening and debilitating illness to make that decision. A qualified attorney can help you decide which type of will is best for you. Wills FAQs Wed, 18 Jun 2008 21:58:17 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-circumstances-dictate-the-need-for-a-wil.html A person`s age, marital status, and financial holdings weigh heavily into the decision to draft a Will. In general, every adult should think about making a Will, and the need grows as your assets and family ties increase. Wills are especially crucial for parents with children who are minors (under 18 in most states), since you can name a guardian in a Will and make arrangements for financial support of children even past the age of 18. Couples also have each other to think about. If your spouse dies without a Will, state law might force you to split the assets of the estate (the deceased`s property) with your children, leaving you without enough assets to support yourself. Also, any property going to a minor child in such a situation would be subject to an expensive court­appointed guardianship, which could eat up any inheritance. In addition, in some states, if you were married and childless, your parents could split your property with your spouse. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-does-it-mean-to-take-against-the-will.html A procedure under state law that gives a surviving spouse the right to demand a certain share (usually one­third to one­half) of the deceased spouse`s property. The surviving spouse can take that share instead of accepting whatever he or she inherited through the decedent`s Will. If the surviving spouse decides to take the statutory share, it`s called Taking Against the Will. Dower and Curtesy is another name for this process. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-happens-if-a-named-executor-is-unable-or.html If the named executor is either unwilling or unable to serve when the Will goes to probate, the court will appoint a new executor. Beneficiaries of the Will can file a petition with the court suggesting a particular person as their choice for executor. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-happens-if-a-person-dies-without-a-will.html If a person dies without a Will, he/she will be considered to have died intestate. In this case, property will be distributed by the states laws. Often, the surviving spouse will get half the estate and any children will inherit the other half. If a person dies without a Will and without any trace of any heirs, all property will escheat (be turned over) to the state. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-happens-to-my-will-after-i-die.html After you die your Will is administered by the personal representative or executor whom you designated in your Will. Your personal representative will then retain an attorney for the purpose of filing your Will with the probate court. The attorney and clerk of the court will then proceed to close out your affairs by notifying all of you creditors and closing your various accounts. After all this is done, your assets will be transferred to your heirs according to your wishes. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-is-a-bequest.html The legal term for any personal property, with the exception of real estate, left to a beneficiary in a Will. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-is-a-codicil.html A codicil is a document that is used to explain, change, add to, or take away from, the existing will. It is not meant to contain the entire will itself, nor is it meant to totally revoke a prior will. The codicil serves to make changes to the existing will without having to rewrite the will entirely. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-is-a-holographic-will.html A holographic Will is a Will written entirely in the handwriting of the Testator (person preparing the Will). A single piece of paper that says nothing more than this is my last Will. I give everything I own at my death to XXXXX, that is dated and signed is considered to be a valid Will. However, if any part of this writing is not in Testator`s own handwriting, it is considered invalid. A holographic Will does not have to be witnessed. However, upon Probate of the holographic Will, the court will require a person familiar with the Testator`s signature to prove the genuineness of the Will. Wills FAQs Mon, 21 Apr 2008 01:59:23 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-is-a-simultaneous-death-and-common-disas.html Simultaneous Death and Common Disaster Provision is a clause that is usually included in the wills of husbands and wives. The clause provides that when it is impossible to determine which spouse of a married couple died first (such as when they both died in a car accident) the husband is automatically considered to have died before his wife. Then any beneficiary who is mentioned in both their wills to inherit (such as their children) can inherit the estate. This clause not only helps lessen the amount of estate taxes; it also speeds up the transfer of probate assets and helps resolve the issue of how to dispose of nonprobate assets, such as proceeds from insurance policies. It also helps avoid delays and the extra costs of double administration. Please contact an attorney for more information. Wills FAQs Mon, 31 Mar 2008 15:10:42 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-is-a-will-.html A Will is a written instrument containing directions for how the property of the person making the Will (called the testator) shall be divided on his or her death. State law generally requires that the Will be signed by the testator and by at least two witnesses who have no interest in the property passing under it. The testator must state in the presence of the witnesses that the instrument is his or her Will. He or she must also be competent (not insane, senile or mentally disabled) and not acting under duress or under the controlling influence of any person. A signed instrument purporting to be someone`s Will is not officially recognized until the court having jurisdiction over the instrument declares it to be a valid Will after examining it and the circumstances surrounding its execution. The process by which a court determines whether a Will is valid is known as probate. Wills FAQs Fri, 21 Dec 2007 23:25:37 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-is-an-ademption.html The failure of a bequest of property in a Will. The gift fails (is adeemed) because the person who made the Will no longer owns the property when he or she dies. Often this happens because the property has been sold, destroyed or given away to someone other than the beneficiary named in the Will. A bequest may also be adeemed when the Testator, while still living, gives the property to the intended beneficiary (called ademption by satisfaction). When a bequest is adeemed, the beneficiary named in the Will is out of luck; unless he/she has already received the property while the Testator was alive. However, beneficiaries may challenge an ademption in court, especially if the property was not clearly identified in the first place. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-is-an-alternate-beneficiary.html A person, organization or institution that receives property through a Will, Trust or Insurance Policy when the first named beneficiary is unable or refuses to take the property. In insurance law, the alternate beneficiary, usually the person who receives the insurance proceeds because the initial or primary beneficiary has died, is called the secondary or contingent beneficiary. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-is-an-augmented-estate.html An augmented estate is property left by the decedent`s Will plus certain property transferred outside of the Will by gifts, joint tenancies, living trusts and other documents. The value of the augmented estate is calculated only if the surviving spouse declines whatever he or she was left by the Will and instead claims a share of the estate (taking against the Will). The amount of this statutory share depends on state law. A surviving spouse can generally claim one­third to one­half of the augmented estate. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-is-an-executor.html An executor is the person who makes a list of all the assets and debts of the estate and seeks to carry down the directives of the Will. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/what-should-i-do-with-my-will-after-i-sign-it.html You will need to place the original Will in a safe place, and make several other copies to give to friends and/or family members for safekeeping in case the original gets lost. The important thing to remember is to keep at least one copy of your Will in a safe place your attorney and/or chosen executor can readily access, in case the original cannot be found. A good place to keep a Will is in a bank safe deposit box or at some other institution where there is less chance of your Will catching fire, being stolen or otherwise getting destroyed. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/when-should-a-will-be-changed.html A person should change one`s will when one marries, becomes a parent, gets divorced, moves to another state (since one`s will must be probated in the state one lived in at the time of death), if either one`s or one`s beneficiaries` financial state has changed, and/ or if one`s spouse or beneficiary has died. For more information as to whether you should change your will, please contact an attorney. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/when-should-you-change-your-will.html You should always review and, where applicable, change your Will after any material change of circumstances relating to your family status (i.e., marriage, divorce, birth or adoption of a child, etc.). For example, most state`s laws presume that if your Will was prepared before you got married, that you simply forgot to include your spouse. If you die before changing your Will, your spouse would be awarded the share he/she would have received had you died intestate (without a Will) because by law your spouse is considered a pre­termited heir. This could have a terrible and unexpected effect if, for example, you intended to leave your estate to a friend or relative who needed the monies or to your favorite charity because you and your spouse were already well off. If you die without changing your Will, your spouse would receive all of your property and the intended beneficiary none. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/who-can-prepare-a-will.html Anyone of sound mind and body can prepare a Will. This generally means someone who is an adult­over the age of eighteen or the age of majority of the state where the person resides­as well as someone who is not declared to be legally incompetent by a state or federal court. A minor cannot prepare a Will, nor can anyone who has a guardian appointed for them. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/who-should-make-a-will.html Each year a large number of people die without Wills leaving major decisions in the hands of the state. Every adult person should seriously think about making a Will. Wills are especially important for parents of children who are under eighteen, since they can name a guardian in a Will and make arrangements for the children`s financial support. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/who-should-witness-the-signing-of-my-will.html You should sign your Will before at least two people who are not family members or people designated in you Will as beneficiaries. You also should sign your Will before a notary. This way it can be submitted to the probate court as a legally valid document after your death, and it will reduce the possibility of someone challenging the Will because it will be under the protection of the probate court. Wills FAQs Tue, 29 May 2007 21:19:00 GMT http://resources.lawinfo.com/en/Legal-FAQs/Wills-Estate-Planning/Federal/whom-can-i-choose-as-the-guardian-of-my-minor.html You can designate anyone you wish to be a guardian for your minor children as long as the designated person is an adult and legally fit to be a guardian for minor children. The guardian does not necessarily have to be a family member. However, after you are gone this person will be legally responsible for your minor children until they reach the age of majority. The guardian can be a man or a woman, and you can designate more than one person (e.g., a married couple). Most importantly, you should feel comfortable putting your children in the guardian`s care should the need arise. You specify your guardian(s) in you Will, like you would specify your personal representative or executor. You can even choose the same person to be both the executor and the guardian of your children. 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