Can I really prepare
my own Will without paying a lawyer?
YES. Whether you choose to hire an attorney and pay him for
the legal advice of educating you on the basics of the law and then applying the
law to your personal situation, or instead you choose to commit a little time learning
the basics of the law on your own and then preparing your will yourself at a fraction
of the cost, the most important thing is you get it done now. It’s that important
for you and your family.
For most Americans the preparation of a Will and Estate Plan is relatively straight-forward
and does not have complex issues that would require the expert advice of an attorney.
For most of us, we have accumulated some assets, like a home, perhaps some investment
properties, stocks, bonds, retirement plans, life insurance, and a wide variety
of other tangible assets. We may have children for whom we want to ensure are taken
care of well should we pass before they become adults, and we want to appoint a
Guardian to care for them and provide for them as we would. And finally, we want
to do everything we can to protect and secure the well-being of our family even
though we may be gone.
FamilyWillPlan provides all the resources you need to do it yourself
and do it well. Our Estate Planning Library is designed to provide you clear and
easy to understand explanations, definitions, and examples of the various topics
and issues that may apply to you in preparing your Will and Estate Plan. The questionnaire
provides you an opportunity to provide the information necessary to prepare your
Will and Estate Planning documents easily and affordably that accomplishes your
objectives in a confidential and secure manner.
Will my Estate
or Family be responsible to pay any debts I may have when I die?
Your Estate will be responsible to pay your valid debts but your Family will not
be. The Executor or Personal Representative of your Estate will be
responsible for notifying creditors of your death and paying all of your valid debts
before the Probate Court will authorize distributions to your named beneficiaries.
Will I have
to pay Estate tax?
The United States Government imposes a tax upon All decedents’ estates
called the federal estate tax. The estate tax applies to all of a decedent’s
property whether it passes to others through a will and probate, by contract with
designated beneficiaries (IRA’s, life insurance, bank accounts, etc.), through
a trust, or by operation of law (joint tenancy property) and is subject to tax rates
as high as 45% of the value of the property.
Now the good news.
Most Americans will never have to worry about their Estates and their families
having to pay Estate tax to the government. Under the Economic Growth and Tax Relief
Reconciliation Act of 2001 (EGTRRA), in 2009, a decedent’s assets up to $3,500,000.00
million were excluded and not subject to tax. For 2010, there will be no estate
tax on any estate regardless of the value of the assets, however in 2011 the amount
entitled to be excluded will be reduced to $1,000,000.00 unless Congress extends
the repeal or makes the $3.5 million exemption permanent, which they are likely
to do.
In addition to the Federal Estate tax, Some states have their own estate taxes that
generally apply only to very large Estates and some states also have Inheritance
taxes where the beneficiary may have to pay a tax to the State.
The Bottom line is that unless you have assets totaling $1,000,000.00 or more, Estate
taxes are one less thing you have to worry about or even consider. Preparing your
Will and Estate Plan is relatively straightforward and does not require complicated
and expensive estate tax planning considerations such as AB trusts, QTIP trusts,
life insurance trusts, or charitable trusts designed to avoid or minimize Estate
taxes.
My wife and I just had
our first child but we don’t really have many assets yet, do we really need
to prepare a Will right now or can we wait till later?
All Parents that have young children should have a Will. Life is full of
uncertainties and preparing a Will is vitally important to ensuring the
continued well-being of your children should you not be around. Like life
insurance, it is a loving effort to provide for your family beyond your
lifetime. A Will is the only document that enables you to choose in writing whom
you entrust to be the Guardian of your children, to provide the love, care, and
support to them in your absence. Some parents assume that if they are not around
to care for their children, the other parent will naturally provide for the
needs of the children. What if both parents are tragically killed together
simultaneously in a car or airplane accident? It is for this reason that both parents may want to name
the other as the first logical choice to be the Guardian of the children, but
also name an alternate Guardian within your Will.
What happens
if I die without Will?
For persons that have not set forth in a Will their personal choices and decisions
as to who will receive their property upon their death, who will care for their
young children, and how their Estate will be administered, a Probate Judge will
administer your Estate pursuant to the rigid and generalized Intestacy laws of your
home state which may not be what you would have wished for had you written your
own Will and may not provide for the needs of your family in a manner you would
have chosen.
What is a Will and
what are the benefits of making one?
A Will is a written document that sets forth your personal wishes as to how you
wish your Estate to be administered upon your death. It allows you to name who you
appoint to be the Executor or Personal Representative of your Estate, who will be
the beneficiaries of your property, who will be the Guardian and Trustee to provide
care and support for any young children, and to set forth any special instructions
such as burial instructions and/or provide for the continued care of pets. The benefits
of preparing your own Will are that you make your own decisions rather than allowing
a Probate Judge and your state intestacy laws dictate how your affairs and property
are handled. By making a Will and other Estate Planning documents, you put into
place a plan to safeguard and secure the continued well-being of your family beyond
your lifetime.
I have three young children,
and I worry about who would take care of them if my wife and I were not here to
care for them, what would happen?
If you and your spouse were not around to care for your children, a Judge would
appoint a Guardian to assume the role of providing the love, care and support to
the children in the absence of their parents. By preparing your own Will, you are
able to name alternate Guardians that you would like to have care for your children
if you are not around. It may be a sister or brother, a close family friend, but
most importantly, it is someone that you name and indicate to the Judge as your
personal choice to continue raising your children as you would have.
What is Probate?
Probate is the State Court Proceeding where a Probate Judge determines that any
Will presented to him or her is valid and was signed by you, appoints a Personal
Representative or Executor to administer your Estate as well as any named Guardians
and/or Trustees, and supervises and approves the payment of all valid debts of your
Estate and the distribution of assets to your named beneficiaries.
What are the requirements
for a Will to be valid?
Each State has laws that specify what are the requirements for a Will to be valid,
but generally a Will must be signed and witnessed as being a true and valid expression
of the person’s wishes.
What would happen if
I unfortunately were incapacitated by an accident or illness and could not handle
my affairs?
If you do not have Powers of Attorneys that provide who you have appointed to make
healthcare treatment and financial decisions for you if you are incapacitated and
unable to do so yourself, the Court would appoint a person to do so.
By preparing your own Financial and Health Care Powers of Attorney, you are able
to choose the person or persons closest to you and whom you trust to best make decisions
on your behalf rather than leaving that decision up to a Judge.
What is a Living
Trust?
Creating a Living Trust is yet another way you can transfer assets upon
your death that will be outside your Estate and avoid Probate court proceedings.
The assets you transfer to your Living Trust are able to avoid Probate because,
as long as done properly, the law regards the property as no longer being owned
by you, as title is legally transferred, but rather by the Trust. During your lifetime,
you can still serve as “trustee” of the Trust and maintain control of
the Trust assets with full rights and powers to use the property, spend it, sell
it, or gift it away. Upon your death, the appointed successor trustee will distribute
any remaining property to the beneficiaries named by you within the Trust document.
The downside of the creation of a Living Trust is that it requires more preparation
and continual attention than a Will in that it adds a layer of complexity to managing
your Estate as you are required to actually transfer title to property to the Trust
called “funding” the Trust and conduct business relating to the property
in the name of the Trust.
For some, the use of a Living Trust, or a Living Trust in combination with a Will,
offers advantages and is worth the additional expense, planning and documentation
of transfers to the Trust, however for most, the simplicity of a Will, which allows
you to clearly define who will receive property upon your death, is more than sufficient
to achieve your goals.
What is a Living
Will?
The Terri Schiavo case brought worldwide attention to the heart wrenching decisions
that a family may face when a loved one suffers a tragic accident or illness which
renders them in a vegetative or terminal condition. As Ms. Schiavo did not have
a written Living Will setting forth her wishes as to whether or not she wished to
have life sustaining medical treatment or procedures withdrawn or continued if it
was medically determined that she had a terminal condition, her family was forced
to attempt to ascertain what her wishes would have been. Ms. Sciavo’s husband
believed she would not have wanted to continue her life in a persistent vegetative
state and argued for the removal of her feeding tube while Ms. Schiavo’s parents
believed she would have wanted the continuation of life sustaining procedures.
A Living Will gives each person the opportunity to exercise their fundamental right
of determining for themselves their own personal decisions whereby they can make
a written declaration stating whether they choose or refuse medical treatment or
procedures which would only prolong life when a terminal condition exists.
Everyone should have a Living Will that allows them to make their own personal decisions
pertaining to his or her own life and health, and just as importantly, provides
your family, your medical providers, and the Court system with clear direction as
to your wishes so that they do not have to “guess” as to what you would
have wanted had you provided your choice as to these issues.
Do I need to hire
a lawyer to make my Will and Estate Planning documents legal?
No. It is not a legal requirement that a Will be prepared by a lawyer.
Thousands of Americans just like yourself have determined that by dedicating a little
time on their own to learning and understanding the law as it relates to them and
utilizing the resources of a legal information site like
FamilyWillPlan,
that they can gain the self satisfaction of completing their own wills and estate
plans and saving a lot of money that would have been paid to a lawyer.
Generally, if you have accumulated assets with a combined net value of less than
one million dollars and wish to transfer your assets upon your death to your family,
you can comfortably use the resources here at
FamilyWillPlan to
prepare your own Will and Estate Plan.
Although it is true that most Americans can effectively prepare a valid legal Will
and Estate Plan on their own and save the expense of hiring an attorney, it is our
duty to suggest to you that if your financial or personal situation are complex,
or if you have any question as to the legal sufficiency of your Will or Estate Plan
to accomplish your goals under your state laws, you should consult a licensed attorney
in your state for legal advice on your personal facts and circumstances. Some possible
situations that may require the advice of an attorney, include but are not limited
to, if you have a family business, if you have a special needs child, you wish to
disinherit your spouse or if you anticipate that your will would be challenged.
Additionally, if you believe that your Estate may be subject to Estate taxes you
should consult an attorney to consider utilizing estate tax planning tools to minimize
or eliminate the impact of Estate Taxes. For most Americans, their Estates will
not be subject to Estate tax as the Federal Tax exclusion amount for 2009 was $3.5
million. Although the exclusion amount was $3.5 million, as noted above, if you
have over $1 million in assets, it may still be worth the expense of hiring an attorney
to review your personal situation and estate plan even though you still are well
below the $3.5 million level which would make you subject to estate tax.
Do I live in a Common law
state or a Community Property state?
Community Property states
Arizona
California
Idaho
Louisiana
Nevada
New Mexico
Texas
Washington
Wisconsin
Common Law States
All other states
*Alaska (couples may agree in writing to treat their property as community property)
Is a handwritten Will valid?
In some state a handwritten Will also known as a Holographic Will is valid and in
other states it is not. While scribbling your Will on a cocktail napkin possesses
the drama of television and the movies, it is not the best way to prepare such an
important document.
FamilyWillPlan provides you an easy to use,
easy to understand process for preparing your Will and Estate Planning documents
that will set forth your wishes and be valid in your home State.
Can I change or revoke
my Will later if I want to?
Of course. There are many things that can happen over your lifetime that may be
a good reason to change your Will or create a new one. If you want to make a small
change to your Will, you would prepare a written document called a “Codicil”
that references your Will, specifies the desired change, and is signed and witnessed
like your Will.
For many changes such as moving to another State, changes in your relationships
like a marriage or divorce, the birth or adoption of new children, the increase
in the value of your property, and other life event reasons, it may be best to create
a new Will that “updates” and reflects the most recent current status
of your life, your family and your wishes.