How do I know that the Will I made is valid?

        A lot of people buy Wills online or through Kinkos. But how can you make sure that the Will you bought is valid? Following are formalities and solemnities that are required for a valid Will. For the purpose of this blog post, a testator is the person making a Will in many states like Texas.

  1. Writing requirement. The Will must be in writing. The Will either has to be entirely typed or entirely in the testator’s handwriting. It cannot be in between.
  2. Signature requirement. The Will must be signed by the testator. The signature of the testator does not have to be his formal signature. The only requirement for the signature is that the it be a name or mark intended to express approval of the will as the testator’s will.  The signature can be located anywhere in the will and not just at the end of the document. Although, traditionally, that is where you will find the signature.
  3. Witness requirement. If the will is not a holographic will – entirely in testator’s handwriting, it requires two (2) witnesses who are 14 years of age or older to sign the Will in testator’s presence. The witnesses must sign the will itself. They cannot later draft an affidavit stating they were present at the will execution. The witnesses have to be credible. The executor can be a credible witness if the only thing she receives under the Will is compensation for being an executor. A beneficiary under the Will cannot be a credible witness. The witness does not have to have knowledge of the contents of the will. The witnesses do not have to sign in each other’s presence.
  4. Capacity requirement. Not only does the will you have needs to be executed properly but who can make a will is also a question that must be addressed. To make a will, a person must be at least 18 years of age or older.
  5. Sound mind requirement. To make a will, a person must be of sound mind. A person is of sound mind if the person has sufficient mental capacity to make a will. The person must understand the he/she is making a will. He/she must know the effect of making a will. The person must understand the nature of property he/she owns. The person must know her next of kin. The person must understand the business to be transacted – making of a will.

If you are unsure if the document you received from online or Kinkos, please contact an experienced estate planning attorney Arlington TX relies on. Not only they can verify what you have is a valid will or not, but can also draft one for you.


Thanks to our friends and contributors from Brandy Austin Law Firm, PLLC for their insight into estate planning and wills.

Why it is Crucial to Purchase Title Insurance When Buying a Home

Most property that people purchase can be physically transported from the seller to the buyer. This would include everything from jewelry, a car, a washing machine, etc. However, the purchase of land in any form, whether a home, a lot or acreage, is accomplished strictly by the use of documents.

Typically the seller executes a Warranty Deed in favor of the buyer. The deed is recorded with the local county, and constitutes proof that the buyer now owns the land. What, then, is the purpose of title insurance?

Owner’s title insurance is critically important in the event that future events reveal that the seller did not have clear title to the property. As the saying goes, “one cannot give what one does not have.”

For example, assume that the seller of a parcel of land inherited that land when his widowed father died without a Will.  Assuming that the son was an only child, he would inherit this land. However, assume further that five years after purchasing the land from the son, a nephew of the father comes forward with a validly signed Will which clearly gives the father’s land to the nephew?

In such a situation the owner’s title insurance will hire an attorney, like a real estate or real estate litigation lawyer Coeur d’Alene ID residents turn to, to go to court to defend the owner against the nephew’s claim. However, should the nephew’s claim be validly based on a properly executed Will, then the owner’s title insurance policy will pay the owner for the financial loss of that land. In other words, the owner will be “made whole.”

In many real estate transactions, it is common to require the seller of the home to pay the cost of the owner’s title insurance policy. Unlike most insurance policies which require regular monthly payments, owner’s title insurance is paid in one lump sum at the time of the closing of the sale of home.

The owner’s title insurance policy may protect the owner from other types of losses regarding the home, such as:

— Previously undisclosed easements
— Unknown liens by tradesmen and contractors
— Violations of zoning laws
— Unlawful encroachments on to other property
–Encroachment of fences

NOTE – All title insurance policies are not the same. The degree of protection the buyer receives depends upon the exact language of the policy of insurance.

Finally, if a person purchases a home using a mortgage, the mortgaging bank will almost always require the buyer to purchase Lender’s Title Insurance, protecting the bank from the types of losses described above.

 

Thanks to our friends and contributors from The Bendell Law Firm PLLC for their insight into title insurance.

 

Managing Wealth After a Divorce

Divorce is known to be a financially disastrous task, but rebuilding your wealth afterwards is very possible. Since you may have been dependent on two incomes to help pay bills and other things for your entire household, learning how to manage your income with one less individual to support can be a little rough. However, if you learn to establish a budget and not go over it, reassess your current financial situation, reevaluate and re-prioritize your financial goals and projected income, it can be a lot easier to understand and maintain.

One step to financial planning is to review your financials and expenses monthly. You should begin by looking at your income sources, your most common purchases, which assets now only belong to you, and your new tax situation.  Although every divorce is different, it is always harder and more expensive to maintain two households instead of one. If you are paying child support and alimony as well while you are supporting your own household, your expenses will obviously go up. If your ex partner was working when you divorced and you split the assets down the middle, then you only will have your household and possibly child support to worry about. You should also review your past year’s credit card and bank statements.  You can make a chart and organize your expense category and list separate expenses for you, your former partner, and your children if you have any.  Once you have made this list, you will definitely have a better and broader understanding of what you can afford, so you can allocate the money to new things that you may need.  If you were awarded the house, consider downsizing to an apartment to save money. You will have one less person living with you, so there is no need for extra space unless you have children that will live with you.

Insurance coverage for both you and your ex spouse is typically negotiated as part of the divorce settlement.  Because spouses usually share the same insurance plan, try to make it a priority to find good health insurance coverage after your divorce.  Also, now that you are single you will want to make sure that your life insurance coverage and disability coincides with your current state of health.  You will possibly need to change your beneficiary designations on any retirement accounts, wills, estate plans, and bank accounts that you have in your name.  Some divorce settlements may require you to keep your ex as a beneficiary on a policy, in which you cannot change the beneficiary designation. Speak with an experienced attorney such as the family lawyer Tampa FL locals turn to.

 

Thanks to authors at The McKinney Law Group for their insight into Family Law.

 

Do trusts pay taxes?

People often set up a trust to makes things easier on their family when they pass away, and to provide for the future of their family. However, taxes on trusts can sometimes make things very complicated. The short answer to the question “do trusts pay taxes?” is . . . well, . . . it depends, and consulting a trusts lawyer Phoenix, AZ frequently relies upon is advised.
The long answer is that the structure of the trust will greatly influence how complicated the taxes will be. If simplicity is the goal, provisions can be included to accomplish that. And if complicity is the goal, lawyers can easily make things complicated. Trusts are taxable entities, however, who pays the taxes (the trust itself or the individual who created it) can vary depending on how the trust was set up.

Grantor (Revocable)Trusts

In a grantor trust, sometimes called a “revocable trust” the grantor (the person who created the trust) usually retains the right to add and remove assets from the trust. When the grantor retains this sort of control, the benefit is such that the trust itself generally does not need to file its own tax return. Rather the grantor, the person creating the trust, would file their own individual tax return and list any income from the trust assets.

Non-Grantor (Irrevocable) Trust

In an irrevocable trust where the grantor doesn’t have the ability to add and remove assets, the trust is considered an independent entity that owns the assets and the trust itself must file a tax return. If money is distributed to the beneficiaries, then whether it is taxable or not to the beneficiaries will depend on whether principal or income was distributed, and if it was income, then whether it was tax-free income or retained income from previous years that the trust has already paid tax on. If a trust distributes money to a beneficiary, the trust may also be entitled to deductions for any distributable net income. After that, any leftover income gets taxed directly to the trust.

Each person’s needs and wants are different and can lead to a variety of outcomes when it comes to estate planning. When in doubt, contact an estate planning attorney to talk you through the pros and cons of the different types of trusts.

 


Thank you for our friends and contributors at Kamper Estrada for their insight on this subject matter.

 

Contesting the Validity of a Will

It is not unusual for some family member to be shocked when the Last Will and Testament of a recently deceased person reveals that they have been disinherited. The following is an example of a situation that frequently occurs:

John Smith is an 87 year old widower, with four adult children – James, Robyn, Phillip and Jessica. Twenty years previously John signed a Will prepared by an attorney, like an estate planning or estate litigation lawyer Coeur d’Alene ID trusts. The Will stated that all his property would go to his wife, unless she predeceased him, in which case his property would be divided equally among his four children.

John dies just a few weeks before his 88th birthday. Five years prior to his death John had moved into the house owned by his daughter Robyn and her husband, and shortly thereafter signed a new Will leaving his entire estate to Robyn. What options are open to the remaining children to prevent being totally disinherited by this new Will?

  1. Mental Incompetence

After Robyn’s attorney files for a probate of the Will, the remaining children can contest the validity of the Will on the ground of mental incompetence. That is, they can try to persuade the judge that John Smith was suffering some a significant mental or psychological condition, such as Alzheimer’s disease, so as to render him mentally incompetent to sign a valid Will.

This will not be an easy task. The bar for mental competency to sign a Will is not very high. Moreover, most courts put the burden of proof on the persons contesting the Will to prove incompetence. That is, if the evidence is equally balanced on each side, the judge will uphold the Will.

Another barrier to remaining siblings’ case is that they will have to prove that their father was incompetent at the precise time that he signed the Will. Many persons with Alzheimer’s disease have periodic moments of lucidity during the course of their disease, and even in the course of a single day.

  1. Undue Influence

Some courts recognize the doctrine of undue influence to contest the validity of a Will. Undue influence has defined as domination by the guilty party over the testator to such an extent that his free agency is destroyed and the will of another person substituted for that of the testator. In the situation described above, the siblings may be able to prove that Robyn isolated their father from his other children, and intimidated him to change his Will be suggesting that his food and medicine were totally dependent on Robyn’s good graces.

If the remaining siblings can prove either mental incompetence or undue influence, the judge can declare the Will invalid and order John Smith’s property equally divided among his surviving children.


Thanks to our friends and contributors from Bendell Law Firm PLLC for their insight into contesting the validity of a will.

 

What Is The Definition of Probate?

What Does Probate Mean?

“Probate” is the term given to the process by which a will is dealt with in a court of law. During the time a will is in probate, an individual is named as the executor of the estate. This means that they are tasked with the responsibility to administer the estate which includes distributing the assets to those  named in the will or to the heirs.

Assets will enter probate if:

  • They are to be distributed according to a will.
  • There is no will or alternative form of ownership.

Assets that are not subject to probate are:

  • Any properties that were jointly owned.
  • Life insurance that has specifically named beneficiaries.
  • Assets that are belonging to an established living trust.

What Is the Importance of Probate?

Many people like to avoid having their will subject to probate for several reasons.

  • Because probate cases are of public record, anyone who would like access to the financial records of the family will have that access as they will be able to review any court records.
  • The probate process often involves an attorney which can be an unexpected expense.
  • The cost of probate itself can be high, as much as 5% of the estate’s value. This price will vary based on the complexity of the case.
  • The probate process can be lengthy.
  • During the time the will is in probate, no heirs will have access to any assets that they inherited.
  • The probate process often takes more than six months to complete.

Estate Planning to Avoid Probate

The process of estate planning is complex, and not one we want to think about. There comes a time, however, when we all need to work through end of life planning. A probate attorney may be able to help in planning for this type of occasion. Ensuring that you have adequately planned your estate not only provides you with a sense of relief but also eases the strain on your family when they are left to handle your estate.

It is possible to work ahead of time to reduce the portion of an estate that will be subject to probate. A few ways to do this are:

  • If you have real estate, consider a joint ownership with the person who you will give it to after you pass. The full title can then be transferred directly to that person, thereby avoiding probate.
  • Name beneficiaries for retirement plans and IRAs to keep these assets out of probate.
  • Create a “revocable living trust.” This is a trust you create while you are still alive. It is revocable and you can amend it as needed.

The Advantages of a Revocable Living Trust

There are many reasons for why such a trust is a popular choice for estate planning.

The trust clearly designates individuals and clearly describes how any assets are to be distributed and handled.

  • Your assets are put into the trust which you will be in charge of. You will be responsible for reporting any income of the trust on your yearly individual tax return.
  • Upon your death, the assets contained in the trust will be distributed as you have previously dictated.
  • A living trust works very similarly to how a will works, with the important difference that a trust is not subject to probate.

The goal of avoiding probate is just one of the many complex issues that can make estate planning a complicated process. However, ensuring that your estate is properly managed and cared for can be simplified with the assistance of an estate planning professional such as the estate planning attorney Scottsdale AZ locals turn to. Enlisting the aid of a professional is especially important if your estate is complex, or large.


Thanks to authors at Hildebrand Law for their insight into Estate Planning.

What To Do With Estate Items Not Listed in Will

 

Going through your family member’s items after they pass can be an emotional task, especially while you are in the midst of grieving. You are likely now having to move your loved one’s belongings out of their home and into the hands of chosen beneficiaries. However, you may not be sure what to do if you come across estate items that were not assigned or listed in the will. Here are some tips that can help you decide where the remaining pieces will go.

 

#1 – Decide Which Items May Be Worth a Monetary Amount

Do some research on your own to find out if any items can sell for a significant amount of money. You can try online searches, visit antique stores and even call auction houses to inquire.

 

#2 – Hire a Professional Appraiser or Expert

If your search ends without much lead, try consulting with an expert or appraiser. These professionals can give you a realistic estimate of how much certain items may sell for, and which are not worth your time trying to market.

 

#3 – Allow Family Members to Have First Chance

This may be one of the most important aspects of handling estate items not listed in the will. Make it a point to contact family members so they have a chance to take any belongings of importance. It is likely that close family members will want a cherished object to have in memory of their loved one.

 

#4 – Host an Estate Sale

You can advertise online and in newspapers about hosting an estate sale on a chosen date and time. Estate sales can be popular because people understand you are trying to help clean out the home, and may be willing to sell items for a thrifty price. It may be sad to see some things go, but in the end it will be less you have to donate or find a way to dispose of down the line.


#5 – Hire a Moving Company to Clean Out

Movers Accokeek, MD, recommends can help you in a couple different ways; either they can assist in moving belongings or may offer much needed cleaning services. Some moving companies can package, dispose, recycle, donate and relocate items based on your needs. Having a professional move especially large, delicate or meaningful items may help alleviate your stress. You will already be dealing with plenty on your plate, so having the assistance of a company can take weight off your shoulders.

 

Do not be afraid to ask for help during this process from other family members. It can be taxing to deal with the loss of your loved one, in addition to clearing out a home that may have a great amount of sentimentality. It may be your childhood home, and taking on the responsibility of cleaning it out alone may become too wearing. Ask for help or hire others, and take a break when needed.


Thanks to our friends and contributors from Suburban Solutions for their insight into moving services.

When an Elderly Parent When They Refuse to Write a Will

It is beneficial to create a will in order to preserve your final wishes and ensure your beneficiaries receive the assets you assign them. However, some choose to forego a will, which may be difficult for their family members to understand. In many ways, a will or trust can be useful for family members of the deceased so that they do not have to sort through the remaining assets and that may ease the stress on an already grieving group. There are reasons to pass on without a will, and if that is the wish of your loved one, then you may have difficulty in changing their mind.

Why Might You Avoid a Will?

There are some reasons it may be beneficial to not write a will, the most common ones are:

  • Dire financial situation
  • Unable to complete the will before passing on.
  • Procrastination
  • Deciding they do not have any assets worth including in a will or trust.
  • Unable to come to terms with their demise.

It is difficult to ensure that assets are divided as the deceased would like, partially because there are no instructions indicating what they prefer. The estate will almost surely pass through probate court and it will take a long time to distribute the assets at all. It can be challenging to convince your parent to write a will if they have already stated they do not wish to.

Three Steps to Start Off With

When you begin to work on a will with your parent, begin with a few small steps to promote them moving forward with it. The three steps you can start with are:

  1. Naming a Powers of Attorney for financial matters.
  2. You may include this designation in a living will if you wish, most people choose a close family member for this role.
  3. Have the designated Powers of Attorney look over the assets and financial status of the parent. It will be helpful to have this information to allow for proper representation of the parent later.

Consult an Experienced Estate Planning Lawyer

If you are having difficulties talking with your parent about writing a will, consider a consultation with an estate planning attorney such as the estate planning attorney Scottsdale AZ locals trust so they can speak with your parent about the benefits and importance of leaving instructions for your loved ones. If they decide to move forward, your parent can begin the stages of estate planning with the attorney to ensure their wishes are honored. The likelihood of a contested will, a painful probate process, and overall confusion can be minimized with the advice of an experienced attorney.


Thanks to authors at Hildebrand Law for their insight into Estate Planning.

Can I Avoid Probate Following the Passing of a Loved One?

When a loved one passes away, the grieving process can take a serious emotional toll. In many cases, there will be a lot to sort out when it comes to the obligations associated with disbursing the property of a loved one. In the absence of an estate plan, it can be an overwhelming process to figure out what the person may have wanted.

Probate

When there is no will in place, legal and financial affairs are deciphered through the probate process. Tackling the process of probate can be stressful, especially when you are still grieving the loss of a loved one. During the probate process, the court will look at beneficiaries and determine how assets such as property and money will be distributed amongst them. The probate process can be exorbitant if someone contests the will or in situations where the estate is large.

Estate Planning Options

  • Probate can be prevented by developing an estate plan or will that determines beneficiaries who will receive your assets and property upon your passing.
  • An estate plan will circumvent the need for probate as the beneficiary will inherit your assets.
  • Once a trust has taken effect, the person who inherits your assets will officially become responsible for them and will be able to distribute them in any way they see fit. Once this occurs, they are no longer considered part of your estate.
  • A beneficiary may have to pay estate taxes on the trust.
  • Joint ownership is when property is owned by more than one person, in most cases this occurs with married couples.
  • When a person passes away, it is even possible for more than one person, such as a close friend or relative to receive joint custody of a property.
  • In many cases an estate is divided within the will amongst people who are identified by the person creating the will. This allows for you to take a closer look at how you will divide your assets and who they will go to.
  • You will be able to gift assets to beneficiaries but it will be important to keep in mind that the beneficiary may be required to pay taxes on gifts.
  • Be sure that all accounts have been updated by designating a beneficiary on all insurance policies and retirement accounts in order to avoid probate.

Developing an understanding of the options you may have will be important when going through probate, contacting an estate planning attorney such as the Estate Planning lawyer Memphis, TN locals trust will be beneficial as they will be able to offer knowledge and guidance through the process. With their assistance, they can make sure that you comply with any legalities that may be required.


Thanks to authors at Wiseman Bray LLC for their insight into Personal Injury Law.

 

What Will I Need to Prepare an Estate Plan?

 

Providing Proper Documentation

A will is the most basic tool in estate planning; it can be used for both smaller and larger estates. A will designates who gets which asset from an estate when you die. It can also be useful for younger couples to designate guardians if they have children. Despite your age or size of estate, planning for the future should be a top priority.  

If your estate is larger than the state minimum or if you are concerned about your family struggling through a probate process, you may wish to consider a willing trust. A living trust allows your money to be placed in a fund after death. Any property added into the trust will not have to pass through probate before being distributed to any heirs.

Another important document that you should have prepared is a healthcare directive. This document lets family know if you want to be resuscitated in an emergency and whether you wish to be sustained on life support if you are rendered into a coma.

Listing Beneficiaries

Naming beneficiaries for all of your accounts will allow you to work around probate. All that the transfer of funds will need to be completed is a copy of your notarized death certificate. There may be some taxes due, but probate will be mostly unnecessary.

Naming beneficiaries also allows for privacy which means that the estate will be safe from creditors and collectors. SInce the accounts don’t go through the probate process, they are not a matter of public record and accounts with beneficiaries are not considered part of an estate.

Handling the process will be easier and faster if you provide a prepared list of beneficiaries and account information ready to be put into your documents. This makes the executor’s job easier when they have to contact the institutions and heirs. Any accounts unclaimed will close and become the state’s property.

Do You Have Business or Investment Interests?

You should include a business succession plan to ensure that your business will continue to operate after the owner or manager is gone. You can find the proper forms on most state websites in their business sections. Many states only request you draft a basic letter or list successor’s names and then filing the proper forms.

Having a record of all account information including passwords and usernames, program files and financial information are useful in case you have an online business. If your business used a particular bank account or money service, then you should make this information known to your successors as well.

Making Your Estate Plan

Preparing your estate plan can be a complicated process, even with prepared documents. In order to ensure your assets are received by the correct beneficiaries and are not impacted by excessive fees, you should consider hiring an estate planning attorney such as the estate planning attorney Scottsdale AZ. It is incredibly difficult to create a plan on your own and you should be as thorough as possible. Not to mention an attorney can help you revise it as life changes.


Thanks to authors at Hildebrand Law for their insight into Estate Planning.