Archive for the ‘Wills’ Category

Editors Note: This story was updated on 7/08

Writing a will is a sobering act that’s easy to put off, which is probably why so many of us never get around to it. But consider for a moment what might happen if you don’t leave clear instructions for the distribution of your property after you’re gone.

If you die without a valid will, your state will supply a ready-made one that has been devised by its legislature. Like a ready-made suit, it may fit — and it may not. The possibilities for trouble when you leave no will are nearly endless. A hostile relative might be able to acquire a share of your estate, for example, or a relative who is already well fixed might take legal precedence over needier kin.

So you should have a carefully written will. This is not a time to take shortcuts in the hope of saving a few bucks. It makes sense to pay a competent lawyer a reasonable fee to write a document that will lay out your wishes and stand up later to scrutiny by the probate court, your beneficiaries and anyone you choose not to make a beneficiary. Getting a good will also takes some thinking on your part. Will-writing kits, on paper or computers, can help you focus your thinking and get ready to meet with the lawyer. A software program that can help is Quicken WillMaker Plus by Nolo (on sale for $39.99).

Here are six steps to take when crafting your will:

1. Size up your estate. Start by drawing up a list of your assets — real estate, bank accounts, stocks, bonds, cars, boats, life insurance, profit-sharing and pension funds, business holdings, money owed to you, and the like. See How Large is Your Estate for more info.

2. Protect the children. If you have minor children, you’ll have to decide who you want to take care of them if you and your spouse both die. This involves setting up a guardianship, a task that has two principal functions. The first is to provide for the proper care of the children until they reach the age of majority. The second is to manage the money and property you leave to the children and distribute it to them as you would wish.

The same person could fill both roles, but the “guardian of the person” can be different from the “guardian of the property.” Choose the former for his or her nurturing abilities and the latter for financial knowledge and money-management skills. If you’re divorced, you might be inclined to choose a separate property guardian because the surviving parent typically would get custody of your children. Name backup guardians in case your first choice dies, is incapacitated, or perhaps wants to relinquish the job after a few years.

In addition to your will, it helps to leave detailed instructions on how you want your children raised. In a letter, or even on videotape, you can spell out anything from your views on cars and part-time jobs for teenagers to your priorities on education and religion. These instructions can provide important guidance, but they aren’t binding.

3. Distribute your property. Next you’ll have to decide how you want your estate distributed. This is obvious and straightforward in many instances, such as leaving everything to your spouse, or to your children if both of you die. You needn’t account for every piece of jewelry or every stick of furniture (but do account for pets). Making specific bequests of long lists of items like that in a will can needlessly complicate matters and lead to extra costs and delays. Write these up separately and let your executor carry out your instructions.

4. Choose an executor. Be prepared to name an executor (sometimes called an administrator), whose job it will be to see to the distribution of your estate and make sure any taxes, debts, and other obligations are paid.

Choose your executor carefully. Naturally, he or she should be someone you trust — a relative, a friend, your lawyer, or anyone you feel is able to take on the responsible task of disposing of your estate. The person should be willing to do the job, so check before you name someone who might later refuse, thus forcing the court to appoint someone you might not have chosen.

A husband and wife can name each other or a mutually agreed-on person as executor for their wills. You’ll also have to choose someone who will step in as executor if for some reason your first choice can’t do it.

5. See the lawyer. For simple wills a generalist should be able to do the job at a reasonable price. If your estate is substantial, consult a lawyer who specializes in estate planning. Don’t conclude hastily that your estate is too small for you to worry about taxes. Insurance policies, company benefits, investments, and home equity could make your estate larger than you think it is.

Depending on where you live, the complexities of the document you need, and the time you’ve spent sorting things out already, the lawyer’s fee can range from as little as $300 or so for a simple will to $200 an hour for the time involved in planning a complex estate. There is no such thing as an average price.

6. Change it if you want. If your situation changes in the future, you can always amend the will. But don’t do it yourself. You could invalidate the entire document in the eyes of the court, thus undoing the good you’ve done so far. Go to the expense of having the lawyer make the changes.

Once your will is written, don’t just stuff it in a safe-deposit box. The box may be sealed after your death, making the document unavailable for a time. Perhaps you can keep it in the lawyer’s vault or safe at home with your other important papers. You may also want to give a copy to the executor or the principal beneficiary. Subject to your lawyer’s advice, consider including a letter of last instructions that will help your executor gather your affairs together and carry out your wishes.

Adapted from Kiplinger’s Practical Guide to Your Money, by the editors of Kiplinger’s Personal Finance magazine (Kaplan Publishing. Copyright 2005 The Kiplinger Washington Editors, Inc.) Available wherever books are sold or direct at kiplinger.com/store/books.

For many of us that are into our second or subsequent marriage, questions of rights to property are often complicated and do not get resolved prior to one spouse’s passing, which can make for a very complicated estate administration.  Often, spouses come into these partnerships with property, separate assets, and often children. This situation becomes even more complicated if there are children born to this new union. As always, it is important to have a frank discussion on all aspects of estate planning early on, so that neither spouse feels that they are “forgotten” later in life.

Couples can consider entering into pre or post nuptial agreements, which will spell out the reasons for the particular division of property agreed to. Remember that it is important that both sides fully disclose assets and are independently represented by counsel so if there is a challenge to these agreements later, their strength can be ensured.  The Code section also requires a seven-day waiting period prior to marriage if a spouse waived their right to a share of the estate in the other spouse’s estate.  Remember that if you do not provide for all contingencies, the law will.

SHARES FOR FORGOTTEN SPOUSES

Section 21610 of the California Probate Code protects a spouse who is not mentioned in estate planning documents executed prior to the marriage. The statute gives the omitted spouse a statutory share of the estate, but not if (1) the decedent’s estate plan specifically disinherits the spouse, (2) the spouse receives assets outside the estate, or (3) the spouse executes a valid waiver.

So, what this means is that after a marriage, it is imperative to speak with your estate planning professional to ensure that your future desires are properly spelled out in those important documents.  The Code specifically provides certain rules for waiving rights that must be followed to the letter.  Consult with your estate planning professional to ensure you do not have a forgotten spouse problem in the future.

Furthermore, all life changing events, such as marriage, childbirth, divorce, or death of a loved one–should trigger a re-examination of a person’s estate plan, if not an amendment of key documents.   Not amending the documents in a timely manner may indeed ensure a protracted and expensive litigation among remaining family members.

If you require a review and amendment of your estate planning documents, please call The Law Offices of Daniela Lungu for your complimentary consultation at (925) 558-2710 or by email at info@lungulaw.com.

Do you want a specific topic discussed in this blog? If so, please contact us at info@lungulaw.com with your suggestions.

About Daniela Lungu, Attorney at Law

Daniela Lungu, founder of the Law Offices of Daniela Lungu, devotes her law practice to asset protection through estate and business planning. Ms. Lungu’s goal is to provide the people of the Bay Area and California with the highest quality, and most personalized legal services possible. Her attention to detail and a high level of communication with her clientele distinguish her from other attorneys in the field.

 


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