Frequently Asked Questions About Wills & Probate
Will Contests
What is the basis for a will contest?
A will contest is a legal proceeding in which the validity of a will is challenged. Will contests are typically brought by beneficiaries who stand to lose under the terms of the will, or by heirs who would inherit if the will was found to be invalid.
Will contests can be based on a number of grounds, including lack of testamentary capacity, Undue influence, duress, or fraud. If a will is successfully contested, it may be set aside in whole or in part, and the estate may be distributed according to the laws of intestacy.
Will contests can be complex and time-consuming, so it is important to consult with an experienced attorney before embarking on this type of litigation.
How can I avoid probate of my estate?
Avoiding probate is important to many people because it can be a long and expensive process. One way to avoid probate is to create a living trust. With a living trust, you can transfer ownership of your assets to the trust, and the trustee can manage them after your death. This can help to avoid probate because the assets are not owned by you, and they do not have to go through the probate process.
Joint Ownership (Joint Tenancy) of assets, including real estate, is another way to avoid Probate. There are a number of substantial dangers to the use of Joint Tenancy, so it should not be considered without first consulting with a qualified attorney who can advise you on its usage.
For certain types of assets, you can also use beneficiary designation forms to transfer ownership of assets such as life insurance policies and retirement accounts. These forms allow you to name a beneficiary who will receive the assets after your death.
Real Estate Probate Issues
What happens when the person who dies owned real estate in multiple states?
Ancillary probate is the process of administering a deceased person’s estate in multiple states. This is typically necessary when the deceased person owned real estate in more than one state.
Ancillary probate can be a complex and time-consuming process, so it is important to seek the advice of an experienced attorney. Ancillary probate may be required even if the deceased person did not own any real property in the state where they resided at the time of their death.
Is it necessary for all of the decedent’s property to go through probate?
Not necessarily. As previously discussed, certain assets may not be subject to Probate. These include jointly-owned assets, assets held in Joint Tenancy, Totten trusts or Pay-on-death Accounts.
Assets that Pass by Operation of Contract, such as Individual Retirement Accounts (IRA’s), 401(k)s, Life Insurance and Annuities may not be subject to Probate. For these types of assets, the Beneficiary Designation form specifies who receives the asset on the death of the Owner. If properly filled out, the Beneficiary Designation Form will pass the asset to the beneficiary outside of Probate in most cases.
Probate Creditors, Payments and Taxes
How are creditors against the estate handled?
Each state has it’s own rules for how Probate creditors are to be handled. In most cases, known creditors must receive notice of the Probate from the Personal Representative. Unknown creditors generally receive notice through Publication in a newspaper of general circulation in the community where the Decedent resided.
Each State’s Probate Code will specify a period of time in which a Creditor must file a Creditor’s claim against the Estate. If they fail to meet this time requirement, their Creditor’s claim may be rejected by the Probate Court.
Do beneficiaries have to pay creditors out of their own pocket if the estate is insolvent?
No. An insolvent estate will operate much like a bankruptcy. There is an order of payments that are made from the Estate, and these are specified in the Probate Laws of each State. Heirs are typically treated as unsecured creditors of the Estate, which means they may receive nothing if the assets of the Estate are insufficient to satisfy the secured creditors. But beneficiaries are almost never liable for the debts of the decedent in Probate.
How are taxes handled in probate?
Payment of taxes is one of the chief responsibilities of the Personal Representative or Executor. Federal, State, and/or local taxing authorities must be notified of the Estate, in the manner required by the Probate Laws of the state in which the decedent resided. If the decedent (or their Estate) owes money to any government authority, that authority will file a creditor claim against the Estate. Creditor Claims must be fully satisfied before an Estate is allowed to close.
Provisions For Children / Survivors
Are provisions for the care and guardianship of minor children usually provided for in a will?
Parents with minor children often wonder if they need to include provisions for the care and guardianship of their children in their will. The answer depends on the laws of the state where the parents live.
In some states, the court will automatically appoint a guardian for minor children if the parents die without a will or other arrangement in place. In other states, the parents must name a guardian in their will. And in still other states, the court has the discretion to appoint a guardian, even if the parents have not specifically named one in their will.
As a result, it is important for parents to consult with an attorney in their state to determine what their legal obligations are with regard to guardianship of their minor children.
How does a “joint tenancy” affect a will?
Joint Tenancy is often referred to as a Will Substitute. Assets held in Joint Tenancy are generally not subject to Probate, as they become the property of the surviving Joint Tenant immediately on the death of the first Joint Tenant to die.
Ordinarily, Wills have no authority over assets held in Joint Tenancy, as these assets are not subject to Probate. However, in the rare case where both Joint Tenants die at the same time, or both Joint Tenants die before putting the asset in the name of the surviving Joint Tenant, the asset could be subject to Probate.
Questions About Last Will and Testaments
What are the actual requirements for a will to be valid?
To be valid, a will must be in writing and signed by the testator (the person making the will) in the presence of one or more witnesses, in accordance with State Law. The witnesses must also sign the will.
In some states, the witnesses must sign in the presence of a notary public. Although most people choose to have an attorney prepare their will, it is not required. If you prepare your own will, be sure to use the proper legal wording and follow all the requirements for a valid will in your state.
After a will is created, can it be modified?
Yes. After a will is created, it can be modified as long as the person creating the will, also known as the testator, is still alive. One way to modify a will is through a codicil, which is a document that makes changes to an existing will. Codicils must be signed and witnessed in the same way as wills, and they can be used to make any number of changes, including adding or removing beneficiaries, changing the distribution of assets, or revoking the will entirely.
If the testator wants to make more significant changes to their will, they can also create a new will that cancels and replaces the old one. However, it’s important to note that any changes made to a will after the testator’s death are not valid. In order for a will to be modified after someone has died, it must go through the probate process.
Probate is a legal process through which a person’s assets are distributed after their death. If there are any changes that need to be made to the will during probate, those changes must be approved by the court.
Should a will provide a separate list that details and bequeaths specific personal property?
Personal property can include many things: from heirlooms and jewelry to furniture and art. For some, it may be sentimental value that makes certain items priceless; for others, it may be the piece’s history or connection to family.
Whatever the reason, when it comes to distributing personal property through a will, it is important to be as specific as possible. A will is a legal document, and as such, it should be clear and concise. A separate list detailing each item of personal property and its intended recipient removes any ambiguity and makes sure that your final wishes are carried out.
Furthermore, in the event that there are multiple heirs vying for the same item, a bequest reduces the chances of conflict and heartache. Ultimately, whether or not to include a separate list of personal property in a will is a personal decision, but it is one that deserves careful consideration, and you should consult with a qualified attorney in your State to make sure your Will is properly drafted.
When should I make a will?
There’s an old saying that you don’t need a Will until the day you die. However, since most people will never know when that is, the best answer is to have a Will put in place immediately. The pain of an estate going through Intestacy, with no guidance from the Deceased, is too great and should be avoided by having a Will.
What happens if a person dies without leaving a will?
Intestacy is the legal term for dying without a will. If a person dies intestate, it means that they have not left specific instructions for how their property should be divided after their death. In this case, the distribution of the deceased’s assets will be governed by state law.
Intestate succession laws vary from state to state, but typically, the deceased’s spouse and children will be first in line to inherit their assets. If the deceased has no living spouse or children, then their parents or other relatives may be next in line. The intestate estate will be distributed among these individuals according to a predetermined order of succession. In some cases, the entire estate may go to the surviving spouse.
However, if there are descendants from previous marriages, things can become much more complicated. Intestacy can also create problems if the deceased has significant debts. Without a will, it may be difficult to determine who is responsible for paying off these debts. As a result, intestacy can often lead to family disputes and delays in distributing the deceased’s assets. For these reasons, it is always best to consult with an attorney to draft a will before it is too late.
What happens if a will cannot be found?
Missing wills can cause a great deal of confusion and stress for family members who are already grieving a loss. It is important to take action as soon as possible if you believe a will is missing.
If a will cannot be found, the estate will be distributed according to the laws of intestacy.
Time is of the essence in these situations, as delays can complicate matters further. The sooner you take action, the better your chances of locating the missing document and avoiding any potential problems down the road.
Who can or should draft my will?
Estate planning is an important process that everyone should go through, regardless of age or wealth. Part of this process is drafting a will, which dictates how your assets will be distributed after you die. While it is possible to draft a will yourself, it is highly advisable to seek the help of an estate planning attorney.
Estate planning attorneys have the experience and knowledge to ensure that your will is properly executed and that your wishes are carried out. They can also help you navigate the complex laws surrounding wills and trusts, which can vary from state to state. As a result, drafting a will with the help of an estate planning attorney is the best way to ensure that your wishes are respected after you die.
Must a will actually be read out loud to the family by the personal representative or attorney?
Most people believe that a will must be read aloud to the family in order to be valid. However, this is not always the case. Reading the will aloud is not required in all states, and even when it is required, there are exceptions.
For example, if the will is very long or complex, the court may allow it to be read in portions. Additionally, if reading the will would cause undue hardship on the family, the court may waive this requirement. Ultimately, whether or not the will is read aloud to the family is up to the court.
However, in most cases, it is not necessary for the will to be read aloud for it to be valid.