Understanding Why a Will is Important

A Will is an important estate planning tool that describes your wishes for your property after death and who is responsible to see your wishes through.

These questions presented by The Westerly Sun in the article “Making a will is an important legal step,” may seem very basic, but many people don’t really understand how a will works and why they are such an important part of estate planning. Let’s go through these fundamentals about wills.

A will is a legal document that must be prepared under very strict standards to explain your wishes about how you want your estate–that is, your property, money, tangible possessions, and real estate—distributed after you die.

A will also does more than that.  A will, which is sometimes referred to as a “Last Will and Testament,” also makes clear who is going to be in charge of your affairs after death, by naming them as executor of your estate.

A complete estate plan includes a will and several other documents, including a power of attorney, healthcare power of attorney and potentially a trust.  The goal of all of these documents is to make it easier for your surviving spouse or loved ones to take care of you and your affairs, if you become too ill to speak on your own behalf or when you die.

Your will provides instructions about what happens to your estate. Who should receive your money and property? These instructions must be followed by the person you choose as your executor. The local probate court must give its approval, and then the estate can be distributed.

If you have a valid will, it is admitted to probate (a court process) upon your death, and then your wishes are followed. If you don’t have a will, you are said to have died “intestate.” The laws of the state, and not you, and not your loved ones, decide what will happen to everything you own that is subject to the intestacy process. Usually this means that assets are distributed to family members based on their degree of kinship with you.  In Texas, it also means there may be a separate process to determine who those heirs are, which can be time intensive and costly.

It also may not be what you wanted. If you have minor children, the Court may appoint a guardian for those children, or may establish a court monitored trust for the property they receive until they are old enough to handle their own affairs.  All of these extra steps and complexity make a will necessary.

Many clients chose to also use trusts as part of their estate plan and coordinate the trust with the will.  This provides the added benefit of avoiding the probate process, making administration even easier.  Even if you use a trust in your estate plan, you may still need a will in conjunction with that trust.   See here for more details.  https://galligan-law.com/how-do-trusts-work-in-your-estate-plan/

No one likes to think about dying, or becoming incapacitated, but by planning ahead and working with an experienced estate planning attorney to prepare a will, you can determine what you want to happen, and protect those you love.

Reference: The Westerly Sun (August 18, 2019) “Making a will is an important legal step”

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Read more about the article Probate: Dissolving the Mystery
It is important to understand the probate process before deciding whether and how to avoid it.

Probate: Dissolving the Mystery

probate and estate planning
If you want to avoid probate, work with an experienced attorney to coordinate your plan and assets.

Probate avoidance is a common concern for our clients.  They frequently seek ways to pass their assets to their loved ones without going through probate.  Although it can be avoided with proper estate planning, probate avoidance should be done carefully and at the advice of an attorney as using piecemeal strategies usually don’t work, and sometimes create bigger problems.  For example, consider using trusts in your estate planning.  See this article for more information.  https://galligan-law.com/how-do-trusts-work-in-your-estate-plan/

Before considering whether you want to avoid probate, it is important to understand what the process is.  The Street’s recent article on this subject asks “What Is Probate and How Can You Avoid It?” The article looks at the probate process and tries to put it in real-life terms.

Probate is the process by which an Executor (person put in charge of the Will) goes to court to prove the validity of the Will and their authority to be in charge of the estate.  I find it helpful to remember that the word probate is essentially Latin for “prove it.”

Every state’s process is different, but in Texas, the Executor starts by filing the Will and an application to probate along with other documents necessary to that case.  Next, there is a hearing before a probate judge.  The Executor and her attorney ask the judge to admit the Will to probate as the valid Will of the decedent and ask that the Executor be empowered to handle the decedent’s affairs as directed in the Will.

Once the Will is admitted to probate and the Executor agrees to serve, there are many tasks for them to complete.  They include the following:

  • Giving notice to the beneficiaries in the Will;
  • Giving notice to potential creditors of the estate;
  • Gathering, valuing and categorizing the decedent’s assets;
  • Prepare an inventory of those assets;
  • Paying off any of the deceased’s existing valid debts or fighting invalid ones;
  • Paying final taxes or expenses of the estate; and
  • Distributing the deceased’s property to those directed by the Will

The above are just the basic responsibilities of the Executor.  The probate process becomes more complicated when a creditor appears, the family disagrees, assets are entangled or cumbersome, such as land or business interests, or the Will was written without the aid of an attorney.  Even worse, it is hard for an Executor to locate assets in the first place!  This can make estates drag on months or even years.  I recently spoke with a client whose family is still going through a probate 10 years after the decedent has passed.

With all of that uncertainty, it is worth discussing your wishes with an experienced estate planning attorney who will be able to explain what strategies are used to avoid probate, how to remove certain assets from the process, or whether it needs to be avoided at all.  The key, as with all estate plans, is to find the option that fits your goals for you and your family.

Reference: The Street (July 29, 2019) “What Is Probate and How Can You Avoid It?”

Continue ReadingProbate: Dissolving the Mystery

How to Begin the Estate Planning Process

The estate planning process can be intimidating, but doesn’t have to be.  Start by listing your assets, who they go to and who to put in charge.

The hardest part of the estate planning process is  starting it.  About 17% of adults don’t think they  need  a will, believing that estate planning is only for  the very wealthy. In fact, clients frequently ask  whether they have enough money for an “estate.”    Sometimes they think state law will already directs their assets and they don’t need a plan.

However, the estate planning process is not about how much money someone has.  It is about planning for the assets you have, however much or little that may be, your wishes for those assets, yourself and your family.  It is about empowering you to make the choices you want for you and your family, not leaving it up to the state.  Even completing a few simple documents can make a huge difference in the future.

valuewalk.com’s recent article, “Couples: Here’s How To Start The Estate Planning Process” notes that although the estate planning  process can seem overwhelming, taking inventory of assets is a terrific place to start.

Make a list of all your assets, including confirming how they are titled and whether there are beneficiaries named on the accounts, as well as the general value of the assets. Then, decide who you want to leave these assets to and who should be in charge of the process.  Our firm uses questionnaires as part of the estate planning process to help gather this information so we can focus on the issues most important to you.  I also did a video segment on Kevin’s Korner that walks through some of these issues as well.  See this link for the video.  https://www.youtube.com/watch?v=B2M_-tBoSiU 

Drafting a will or a trust may be the most critical step in the estate planning process. These documents serve as the directions for how assets are to be distributed and who is responsible to do it.  A well-crafted will or trust can simplify the distribution of assets at your death, provide instructions to your family, and avoid disputes, unnecessary taxes and protect your beneficiaries from predators.

Without an estate plan in place, your assets will be distributed according to state law, rather than according to your wishes. Don’t assume state law leaves everything to your spouse!  Many people assume if they are married everything they own goes to their surviving spouse, but in many situations, that isn’t true.  For example, blended families, children outside of the marriage and some non-marital property.  Speak with your estate planning attorney about how these issues impact you.

Once you have an idea of your assets, beneficiaries and who to put in charge, the next step in the estate planning process is to meet with your estate planning attorney to review the information so they can make recommendations on the best way to accomplish your goals and highlight other issues to address.  Our firm offers free estate planning consultations, so please contact us today to start the estate planning process.

Reference: valuewalk.com (July 22, 2019) “Couples: Here’s How To Start The Estate Planning Process”

Continue ReadingHow to Begin the Estate Planning Process