WILL & PROBATE LAW

HOW TO DRAFT WE DRAFT A WILL? HERE ARE SOME IMPORTANT POINTS TO BE NOTED WHILE DRAFTING A WILL: MERLYN LAW FIRM

• Don’t name specific investments in your will. You are not guaranteed to still own them at the time of your death. And if you promised that specific bequest to one of your beneficiaries, your estate will purchase it to devise to the beneficiary, which could have significant negative repercussions on the remainder of your estate.

• Be wary of contingencies when making gifts. You may want something for your beneficiaries that they don’t want for themselves, and it could be to the detriment of the other beneficiaries or your estate. Some contingencies won’t even be recognized by the courts and could be determined to be restraints on alienation and void out the contingent bequest altogether. This could mean unintended results for your estate and/or beneficiaries.

• NEVER leave assets to a minor. Legally, they are not permitted to have over a certain amount of property in their name until the age of the majority. We would suggest that our clients designate a property guardian or put their money in a trust.

• Thinking you’re the first to die is another big mistake. Some people leave gifts for people assuming they will outlive them and then they don’t. The gift still has to go somewhere and if you didn’t plan for an alternate beneficiary, the laws of distribution and lapse, in your state of death will govern who gets it in their absence.

• Not having a “residuary clause” is a cause for all kinds of problems. Let’s assume when you die you have much more than you had when you drafted your will. Well, where’s it going? If your will doesn’t dispose of it, the laws of intestate succession will. And you have no say in that.

Merlyn Law Firm always advises clients that a Last Will and Testament is an estate planning tool of last recourse. It’s really what you should use just in case your other estate planning tools fail. One should not rely upon it as their main source of distributing their estate. But if you do have one, make sure it’s drafted to avoid these mistakes.   

WHY IS IT IMPORTANT FOR YOU TO DRAFT A WILL?

We don’t care how much you think you do or don’t have, or how old or young you think you are, or whether you have children or not. The bottom line is – you need a will and there is no getting around it.

A will is a legally binding document whereby a person expresses her wishes with regard to her possessions and loved ones. The will is drafted while alive and goes into effect once the drafter (also known as the testator) dies. A will is the preliminary document drafted as a part of any estate plan. A well drafted will should accomplish the following:

·       appoint a representative (and alternates) to administer the estate;

·       appoint guardians for minor children (and their property);

·       specify the powers and restrictions for the named representative(s);

·       dispose of all of testator’s probate property; and,

·       describe the manner in which the distributions shall be made. 

• Failure to have a will drafted, means all of your assets will be distributed by the laws of intestate succession in your state of residence.
• The laws vary, but most split the assets and distribute half to the then living spouse and the other half is split equally amongst any then living children. Grandchildren of deceased children of the deceased may receive per stripes or per capita, depending on the rules in your jurisdiction.
•  Per stripes is a fancy way of receiving by representation, so the grandchild would step in the shoes of the child and receive her intestate share. 
• Per capita splits what is left to distribute amongst all that are entitled to inherit. Intestate succession does not account for kids that you may not wish to inherit, or other relatives with whom you would not wish to share in your belongings. It simply distributes assets based on a state statute which solely considers lineal heritage. 

Make sure your kids are in good hands. The courts have no way of determining who you would want to care for your kids in the event of your death. Why would you leave anyone else to make a decision of this magnitude? 

Ensure the details are being worked out by someone you know and trust. Appointing your executor in the will provides you with the confidence that your estate will be administered the way in which you would prefer. 

If your estate isn’t made up of a lot, a simple will can likely do the trick. If your assets, liabilities and beneficiaries are a bit more complex, an estate planning lawyer is necessary.  Just get it done!