Frequently
Asked Questions
A Will and a Trust serve different purposes. Most people don't have either one. However, having a Will can allow you to designate exactly how you want your assets and other personal property to be distributed to your friends, family and other loved ones after you die. A Will is probated through the probate court after you die. The directions of the Will are carried out by your personal representative, which is the person you designate before your die to carry out the instructions of your Will. You can save thousands of dollars by preparing your own will versus what an attorney would charge you. Thousands of people have prepared their own Will to avoid the expense of using an attorney to do it. A Trust is a document which allows you to direct how you wish to have your assets distributed without the need for probating a Will through the probate court.
A Trust is administered outside of the probate court after you die. A Trust is generally used to avoid taxes that would normally be paid to the probate court after you die. People use a trust vehicle to avoid paying those taxes. But generally you would not need to prepare a trust to avoid probating your Will if your net assets are under $600,000. In the event your assets are less than that amount a Will would serve the same purpose because the federal tax laws do not tax a person's asset for the first $600,000 after they die.
Everyone should have a Will so that they can designate for themselves exactly how they would like their assets to be divided after they die. Preparing a Will can give you the peace of mind of knowing who gets what, and who doesn’t get something if that is your wish. Your Will has to be obeyed, and can only be challenged in court if someone is intent on doing so. But then you have the protections and safeguards of the probate court to look after your interests. You can designate anything you want, basically, to occur in your Will. This means that you can direct how your house, cars, boats, and any personal assets are to be distributed and under what conditions. The personal representative would be the person you designate in your Will to look after your interests when you are gone. You can also designate a guardian to look after your minor children. This person can be the same as the personal representative or someone different.
Anyone of sound mind and body can prepare their own will. You do not need an attorney to do so. This generally means someone who is an adult, usually over the age of eighteen or the age of majority of the state where you reside, as well as someone who is not declared to be legally incompetent by a state or federal court. A minor cannot prepare their own Will, nor can someone who has a guardian appointed for them. Otherwise, anyone else can and should prepare their own Will.
Most people do not have their own Will, which may present problems for them if something happens to them, for instance if harm comes to them while they are travelling on a trip as simple as a vacation or business trip. If fact, it is a good idea to have a valid Will prepared prior to taking any kind of trip so that your loved ones are not in doubt about your wishes should the unforeseen and unexpected happen. It does not take a lot of time to prepare a Will and the advantages are worth it should the unexpected happen. Your loved ones would not then be left in the dark about how to proceed regarding your assets and desires.
You can designate anyone you wish to be a guardian for your minor children as long as that person is themselves an adult and legally fit. You should pick someone you trust to take care of your children, which is someone you would trust to care for them and leave them with even while you are alive. It does not need to be a family member despite what some people think. However, after you are gone this person will be legally responsible for your minor children until they reach the age of majority. So make sure it is someone who will give them a proper upbringing should you not be there to do it. It can be a man or a woman, and you can designate more than one person, for instance if they are a married couple. Most importantly, you should feel comfortable putting your children in their care should the need arise. You specify your guardians in your Will, just like you specify who you want to be the personal representative of your Will to administer your Will. This can be the same person.
You should sign your Will before at least two people who are not family members or people designated in your Will as beneficiaries under the Will. 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 which will be less subject to challenge because it will be under the protection of the probate court.
Yes, you can disinherit anyone you like from your Will as long as your state laws (that is the state laws of the state where you reside when you make your Will) allow it. This usually means that you can disinherit any distant relative, and usually even children. However, some states provide that a spouse cannot be completely disinherited, and you will want to look into the laws of your state on this point.
You will then want to place the original in a safe place, and also make several other copies to give to friends and/or family members for safekeeping in case the original ever gets lost for whatever reason. The important thing to remember is to keep at least one copy of your Will in a safe place where other people know it is in case those people ever have to gain access to it. A good place to keep a Will is in a bank safe deposit box or at some other business institution where the chances are less that there can be a fire or theft of your documents.
After you die your Will will be administered by your personal representative who you designated in your Will. Your personal representative will then retain an attorney for the limited purpose of filing your Will with the probate court. This process will be much less expensive than otherwise because you would have already prepared your Will yourself and designated who you want to be your personal representative. The attorney and clerk of the court will then proceed to close out your affairs by noticing all of your creditors and closing your various accounts. It is then that your assets will be transferred to various people, charities, etc., according to your wishes.
A Living Will is a separate document from a general Will. A Living Will designates how you wish to be cared for regarding your medical care and treatment while you are still alive if you for some reason cannot specify those wishes yourself. You can designate, for instance, whether you wish to be kept on life prolonging machines if there is no longer any hope that you will recover from, for instance, an accident or long-term terminal medical condition. A Living Will is filled out apart for your general Will, which document is then responsible for directing your wishes about how you want to have your assets distributed once you pass away.
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