Consumer law: What are wills and why should you make one? Are they costly?

Is it important to you to ensure that your prized assets are placed in safe custody after your death? Is it important to you that your child's future remains secure after you're gone? If so, a will and trust may be the legal documents you need to ensure that your children aren't deprived of their rights in your absence.

You can use our services to create wills.

Once you die, the assets of your estate will be used to pay off your debts. A will allows you to state what happens to the rest of your assets by laying out exactly who gets what and how the estate will be divided.

What is a will?

A will is a legal declaration of what an individual wants done with their property after death. The owner of the property assigns one or more people to supervise their estate, and after their death, the property will be transferred to the designated persons according to the will's terms. The testator, who is the person who made the will, has complete authority to alter the will and change the beneficiaries any time prior to their death.

Why do you need a will?

According to the intestacy law, if you die without a will, your property must be distributed according to the laws of your state. It may be that your state's laws will result in your property being distributed as you wish, but there's every chance that it will not. Why take that chance?

Following problems you might face if you do not have a will:
  • 1 As the property gets distributed among your children one can not specify what the others can get.
  • 2 This can lead to many serious issues as there might be a dispute among the children if they are dissatisfied by the division of the property by the state.
  • 3 There might be an arguments among themselves regarding certain items of your personal property; one of them would not like to give away a specified item to his sibling.

Also, when there are significant assets on the line, it's common for family members to fight for them. Writing a will helps to fend off that possibility.

If you want to divide your property unevenly amongst your heirs, you can insert a 'no-contest clause' or 'interrorem clause' into your will. For example, if you want to leave your spouse less than they would otherwise be entitled to, you might consider this option.

California's non-contest clause is spelled out like this:

“Section 21310 of the Probate Code recognizes three types of contests that can be the subject of a “no-contest” clause: (1) a direct contest that is brought without probable cause; (2) a pleading to challenge a transfer of property on the grounds that it was not the transferor's property at the time of the transfer; and (3) the filing of a creditor's claim or prosecution of an action based on it.[Source]

In other words, a no-contest clause can stop some fights before they ever really get started.

Are wills public record?

Wills become public records after the death of the testator. Usually, the court comes into the picture after a will enters the probate process. Wills need to be filed with the court during the probate process, and it's during this time that interested parties come to know about them.

What is a personal representative in a will?

The personal representative is the person appointed in the will to handle the testator's estate. The key responsibilities of a personal representative are:

  • Acquiring the death certificate of the deceased person
  • Acquiring the will
  • Identifying the beneficiaries
  • Informing concerned parties about the will
  • Discovering the probate assets
  • Completing the probate process

How do I contest a will?

You can contest a will by filing a lawsuit to invalidate it. Here are a few of the steps required to contest a will.

  • Determine if you have valid reasons to contest a will
  • Determine if you're a beneficiary or a fiduciary named in the will
  • Find out if there is adequate time to contest a will

Reasons to contest a will

  • You feel that the will has not been executed properly
  • You feel that the testator signed the will without realizing that it was a will
  • You feel that the testator signed the will under force or undue influence
  • You feel that the testator didn't write the will in stable mind

Where should I store my will?

The most important thing you need to do after creating a will is to store it in a secure place. The safest option would be to let your attorney keep the original copy of your will. The attorney should keep your will in a safe place without charging an additional fee.

How long is a will valid?

A will is valid until you revoke it, usually by writing a new will.

Can I change my will?

You can. Usually, people change their will under the following circumstances:

  1. 1 marriage
  2. 2 a new baby
  3. 2 divorce
  4. 2 new assets
  5. 2 new children
  6. 2 they just change their mind

You can change your will by making a new will or adding a codicil to amend your will.

What are the different types of wills?

The most common types of wills are:

  1. 1 simple wills
  2. 2 joint wills
  3. 2 testamentary wills
  4. 2 living wills
  5. 2 oral wills
  6. 2 handwritten wills

What is the difference between a living will and a last will?

A living will, also known as an advance directive, consists of instructions that need to be followed in case of medical emergency. The instructions state the kind of medical treatment the person wants to receive. A last will, on the other hand, directs the division of property amongst the will's beneficiaries. A last will becomes effective after the death of the testator.

Do all wills go through probate?

The laws of your state, the kind of property you have, and how you own that property determine if your will needs to go through probate. Sometimes, it is possible to avoid the probate process and save legal fees with clever planning.

Do wills expire?

If it has been properly executed, a will doesn't expire. It may still be challenged however, and of course it doesn't apply if it has been revoked.

Are homemade wills legal?

A homemade will or a self-made will is legal as long as it meets the requirements of your state. You can type your will on a computer or write your will with a pen. Just make sure you abide by the rules of your state. For instance, you should write a will in a stable state of mind, sign it in front of witnesses, etc.

Do wills need to be notarized?

There is no law that requires wills to be notarized. A will just needs to be legally executed to be valid. A will needs to be notarized when you want the witnesses to sign an optional "self-proving affidavit".

Are online wills valid?

Online wills are legal, valid and quite popular nowadays, as they are usually less expensive than seeking the assistance of an attorney. You can easily use do-it-yourself wills and trusts, but you should be wary: if you make one mistake, your family will suffer. You won't be there to rectify your mistake. That's why it is best to consult an attorney when you make a will or an estate plan.

Are video wills valid?

It is tough to say if video wills are valid, since most legislation is silent on the issue. Video wills are typically oral wills, which are also known as nuncupative wills, which are valid in 11 states: New York, Missouri, Vermont, Kansas, Ohio, Florida, Texas, North Carolina, Indiana, Mississippi, and Tennessee.

Video wills given just before death, also known as deathbed wills, are valid in Washington, too, but only if they are from the members of the US military.

Are wills state specific?

Wills are state specific documents. Each state has its own set of rules. So, if you're relocating to another state, then it's best to get your will reviewed by an attorney there.

What do wills cost?

The cost of wills depends upon the way you decide to make them. You can download free templates and prepare a will without paying a penny. Or, you can consult an attorney to prepare a will to your specifications. Usually, it costs between $150 and $600 to make a will. The average cost is around $375. Your attorney may charge you an hourly rate if complications arise.

If you need a power of attorney and associated estate planning documents with your will, then you should be prepared to pay an additional $1000 to $1500.

Why do you need an attorney guidance while making a will?

The advice of a will and trust attorney can be invaluable for structuring a will that best suits your circumstances.

Here's when you might want to talk to a lawyer:

  • If you think your assets are enough that your estate may be subject to the estate tax. In most cases, your estate must be valued north of about ten million dollars before there's a chance it may come into play, and if your estate has assets anywhere close to that you should probably seek an attorney just to head off other potential problems.
  • If you don't want to name the inheritor of your property. These are generally best handled by an attorney.
  • If you have a question regarding your ownership share of a small business.
  • If you must must make arrangements for the long-term care of a beneficiary - for example, setting up a trust for an incapacitated or disadvantaged child.
  • If you are concerned that the will may be contested. Having a lawyer prepare the will, and witness it, reduces the chances of a successful claim.
  • If you wish to disinherit someone from your property and designate someone else the inheritor of that property, then an attorney can show you the correct legal procedure.
  • If you would feel more confident in your will if a lawyer reviews it.

The lawyer can provide you with choices you may not have considered. The professional guidance of a will and trust attorney can put you on the right path and arm you with accurate information about your will, your choices, and your estate.

Where can you find will and trust attorneys?

OVLG can help you find reliable attorneys to help you prepare a will or trust.

What is the basic difference between wills and trusts?

A will comes into effect after the death of the testator. It lays out who is to receive the testator's property after their death. It also appoints a person to carry out the testator's wishes.

A trust comes into effect as soon as it has been created. The biggest benefit of a trust is that it can be used to distribute property before, after and at the time of death.

Let's look at a brief synopsis of the difference between wills and trusts:

WillsTrust
are legal documents that dictate who will inherit your property after your death.It is a legal document that instructs how your property will be distributed before or after your death.
appoint a legal representative to carry out your last wish.appoint a trustee who will hold the legal title of the said property for the beneficiary. This trustee can be an individual person, a law firm or a bank.
covers properties that are in your name only.covers all the properties that have been put into the trust.
go through a probate process, where the court verifies the validity of the will and ensures its proper execution.don't have to go through a probate. The court is not involved.
become public records.are private and confidential.
allow you to appoint a guardian of your children and make your funeral arrangements.It doesn't allow you to do any such thing.
can't be used to avoid taxes or plan for something like disability.can be used to save on estate taxes and make arrangements for disability.
are time consuming to execute.are a cost-effective process. They help you and your heirs save time and money by avoiding the need for probate.
come into effect after your death.come into effect after the assets are transferred into the trust.
can be revoked before your demise.Whether or not a trust can be revoked depends on the type of trust that has been created. In the case of revocable trust, it's possible to revoke or modify it without the consent of the beneficiaries. An irrevocable trust can't be revoked once it's executed.

There is one big difference between wills and trusts. There is no creditor's protection when it comes to inheritance in a will. Suppose you have selected your son as your beneficiary. So, he will inherit all your properties and money after your demise. But what if he is going through a nasty divorce? What if he has a huge credit card debt on his shoulders? What if he has filed for bankruptcy?

Well, in the case of bankruptcy, he won't be able to enjoy the inherited wealth. The court will use them to pay off his debts. Even if he doesn't file bankruptcy, your son may have to use his inherited money to pay back his creditors. In the case of divorce, he may lose half of the wealth to his spouse.

However, in the case of a trust, there is creditor protection for inherited property. The grantor can keep all the assets and properties out of the reach of the beneficiary. All assets remain in the trust. They are not in the name of the beneficiary.

The beneficiary can access funds and assets from the trust, and use them according to the terms set up when the trust was established. You can appoint the beneficiary as your trustee, able to manage their own inheritance. In other words, if you use a trust to distribute assets among your children, instead of a will, they will be able to enjoy them. The funds and assets won't go into the hands of creditors.

It is common for married couples to leave all their assets to their surviving spouse through a will. If the total value of the estate is above a million dollars, then a huge amount of money will go to the government in the form of the estate tax. However, if the same assets are held in trust for the beneficiary, your estate may be able to avoid that tax. But even in a trust, someone will have to pay taxes. Who? The grantor or the beneficiary? Find out here.

What are the myths associated with a will?

You might harbor certain misconceptions regarding a will. A layman like you might think that your heir has to go through a probate if you have a will, which would be too expensive to handle.

Even if you die without a will, the court is going to distribute your assets. Going through a court procedure won't be less expensive or easier just because you don’t have a will. Very likely it will be more difficult and expensive. In other words, the court process won't be less troublesome than making a will.

If you don’t have a will, the administrators of your estate may have to post a surety bond. If you do, then you have an option to choose the administrator of your estate.

A will can ensure justice for your minor children via intestacy law

If you have minor children, a will is required to secure their future. If you don’t have a will, then the probate court, in order to secure your minor children’s property, will set up a conservatorship. When the children turn eighteen, they get their property back.

If you have a will, then you can determine at what age your children would receive the property. You can set up a caretaker for their inheritance until they reach that age.

Glossary:

  • Testator - A person who makes a will
  • Beneficiary - A person or entity named in a will or financial contract as the inheritor of property when the property owner dies.
  • Intestacy - The state of dying without a will
  • Probates - The legal process in which a will is reviewed to determine whether it is valid and authentic. Probate also refers to the general administering of a deceased person's will, or the estate of a deceased person without a will.

Last Updated on: Fri, 18 Jun 2021