Wills trusts and estates covered

If the legal documents aren’t signed and notarized properly, there is a good chance that problems will arise.

A properly prepared will could have avoide many of the problems faced by a woman who thought she was protected, according to News 2 in “The power of a will and trouble without one“. Ms. Denise Cockrum explains in the news report that she’s going from court procedure to court procedure and the entire issue could have been prevented with a properly prepared will.

Without a valid will, a judge must determine how to divide assets in an estate. In this case, the biggest issue concerns the family home. The mortgage for the home is in her late husband’s name, even though they bought the house and maintained it together.

Here’s the problem: his children from a previous marriage are legally entitled to half of his assets.

Without a will, battles among family members are common. One purpose of the will is to name an executor (also known as the personal representative) who takes charge of distributing assets, including selling a home, paying off any debts and making sure that the decedent’s final wishes are carried out. Without an executor, the first battle is over who will be in charge. That can take months and delay any resolution to the estate.

If there are minor children and no will, the opportunity to determine who will take care of the children is left to the court. Someone who does not know the family will make a decision to appoint the person who becomes their guardian. It may be someone you would not have wanted to rear your kids.

The will also outlines who gets what possessions from the estate. Family heirlooms and artifacts, like china, jewelry, collections and all kinds of items hold emotional and financial value. Fighting over who gets what happens often when there’s no will. That takes time to resolve.

Without an estate plan to help manage tax liabilities, there may be taxes that could have been minimized. The cost of attorney’s fees to settle an estate without a will is also going to be higher than working with an attorney in the first place to create a valid will and other important documents.

Another surprise which families run into when there’s no will is that people assume that the surviving spouse inherits everything. However, that is not always true. Without a will, state law determines what happens to the estate’s assets. Depending on the state, your spouse may get 50% and your kids may get 50%, or the surviving spouse might get everything. In other states, the surviving spouse only receives a third of the estate.

An estate planning attorney can advise you on creating an estate plan that fits your family’s specific circumstances, including preparation of a valid will pursuant to your wishes.

Reference: News 2 (Jan. 29, 2019) “The power of a will and trouble without one

For more information on asset preservation and estate planning, please visit my estate planning website.

Mr. Amoruso concentrates his practice on Elder Law, Comprehensive Estate Planning, Asset Preservation, Estate Administration and Guardianship.