Depending on the contents of your will, and on the amount of your debts, the executor may have to decide whether or not to sell your real estate, securities, or other property. For example, if your will makes a number of cash bequests but your estate consists mostly of valuable artwork, your collection might have to be appraised and sold to produce cash.
Or, if you have many outstanding debts, your executor might have to sell some of your property to pay them. In most states, immediate family members may ask the court to release short-term support funds while the probate proceedings lumber on.
Then, eventually, the court will grant your executor permission to pay your debts and taxes and divide the rest among the people or organizations named in your will. Finally, your property will be transferred to its new owners. To learn more about the probate process—and reasons for avoiding it—see Nolo's article Why Avoid Probate?
Most states allow a certain amount of property to pass free of probate or through a simplified probate procedure. In addition, property that passes outside of your will—say, through joint tenancy or a living trust—is not subject to probate. For a discussion of the most popular probate-avoidance methods, see Nolo's article How to Avoid Probate. In most circumstances, the executor named in the will takes this job. If there isn't any will, or the will fails to name an executor, the probate court names someone called an administrator to handle the process.
Most often, the job goes to the closest capable relative or the person who inherits the bulk of the deceased person's assets. If no formal probate proceeding is necessary, the court does not appoint an estate administrator.
First, you must be of age to make a will. In many states, that means you must no longer be a minor. If a minor dies, his property usually becomes the property of his parents. If you are under 18 years old, you may still be able to make a will if you are living as an adult and have been legally emancipated.
For example, if you are 17 years old but have married or joined the military, you are legally emancipated and capable of making a valid will. Some states have older and some younger age limits so if you are a young person, check on this before you act. You also must be "of sound mind.
You must know that the document you are signing is a will, that it specifies who will get your property when you die, and the general nature and extent of your property. You must also understand that you are married, if you are, and understand "the natural objects of your bounty," meaning your kids or other family member who might ordinarily think that they will share in your estate.
The will must name one or more persons or parties who will get your property. It must suggest that you want the legal document to dispose of your property, i. Finally, the person making the will must sign it voluntarily.
She usually signs it herself, but she can, if need be, direct a lawyer or one of the witnesses to sign instead of her. If you want to sign this way, check with a lawyer first to make sure you do this right. And, be sure to follow state requirements for witnesses.
In almost all states, the signing of a formal will must be witnessed by at least two adults, three in a few states, three plus a notary in Puerto Rico. The adults must know they are witnessing the signing of a will and, in many states, they cannot be getting any benefits under the will. If you live in England or Wales, you can access a government service which lets you search Probate records for documents and Wills online.
Here they will go over the legal documents, relevant paperwork, and swear an oath. Until the grant of Probate is approved, the executor will not have access to the finances of the deceased. Once the Probate has been authorised, the next step is estate administration.
To begin, the executor will pay off the debts, if any, linked to the person who has died, as well as any tax due. This includes inheritance tax, estate tax and income tax. After the debts and taxes, you can distribute the assets according to the Will. If you are the executor or personal representative it is a good idea to keep a record of how the estate is split; this is to avoid any confusion later on. For more information on planning ahead, please read more about our prepaid funeral plans.
If a person dies unexpectedly, they may not have written a Will. In this instance, the estate of the deceased will go into Probate and the court will decide who is entitled to a share of the inheritance using intestacy laws. Additionally, if someone dies without a Will, there are a number of people legally able to apply for Probate, or become the executor of the Will. Prior to the grant of Probate, only the person appointed as executor is able to see the Will.
After it has been granted, the Will becomes a public document. The short answer is yes. But, as with anything, there is an official process that needs to be followed.
This is done by filling in a form of renunciation. It is then filed with the Probate Court, along with the Will. In most states, minors aren't allowed to handle their own finances until they're Upon death, the trustee takes over, and the trust can't be changed. Individuals with a large amount of assets are generally encouraged to form trusts. Death taxes on personal property or money still apply, but they can usually be delayed and reduced by using a trust.
Disinheriting a family member in a will is more common than most people think. In order to prevent your children from receiving assets from your estate, you must legally disinherit them by saying so your will. If the child is a minor, state laws will usually provide them with an allowance from the testator's assets until they reach the age of Spouses are much more difficult to legally disinherit.
Unless there's a prenuptial agreement that stipulates such action, all states prevent spouses from being completely cut off in a will. The set share for surviving spouses in most states is one-third to one-half of the assets. Attorneys generally discourage testators from attempting to cut a family member out of a will completely. Instead, they might advise their client to leave a small amount and include an in terrorum clause that prevents the beneficiary from receiving any assets if the will is contested.
Divorce can also complicate the terms of a will. In some states, divorce immediately makes the current will invalid. In others, only the parts of the will that apply to the spouse are revoked.
No matter what state you live in, if you get a divorce, it's important to review the impact it has on your will. Dying without a will, known as dying intestate , is a common occurrence.
In all cases, probate appoints a personal representative to be in charge of your assets. This administrator acts as executor, pays all debts and inventories assets of the estate.
The inventory is then turned over to the state and divided according to state law among the beneficiaries. A lost will is another problem many families face. The specific circumstances and state laws determine the outcome in these cases.
If there's an earlier will that was in the process of being revoked, sometimes the initial will is used. Photocopies of the will can be accepted in the case of wills lost by fire or other destruction. Wills should always be kept in a safe place, either a safe deposit box or home safe. It's also smart for your attorney to retain a copy. If your will was properly drafted in one state, it's generally valid in another state, but it's wise to have it reviewed by an attorney.
In some cases, the tax laws in your new state may favor your estate, so it can be financially advantageous to change the will. Estate taxes are federal taxes that must be paid by the beneficiaries of the estate.
The amount of money owed is established as a base amount, plus a percentage of the overall taxable estate. As you can see, estate taxes are hefty, and most wealthy people use various loopholes, tax shelters and trusts to prevent their beneficiaries from having to pay so much. Debate is non-stop on so-called death taxes and will continue as long as the Internal Revenue Service IRS demands such large percentages. Estate tax law is very complex. More information about the current laws can found at the IRS Web site.
The term living will is somewhat misleading, as it has nothing to do with personal property or assets. Living wills are documents that outline a person's health care wishes in case of a severe injury or illness. They've become increasingly popular over the years as medical technology has achieved the ability to keep terminal patients alive for indefinite periods of time. As with a last will and testament, the laws that govern living wills vary from state to state, and it's important that they're drafted with this in mind.
The terms for life-threatening conditions are very specific, so a great deal of time should be invested in researching them.
If not, the will can be challenged by family members who want to see their loved one kept alive at any cost. Living wills are required to be signed and witnessed, and a power of attorney is commonly included in case the terms of injury or illness aren't covered. In this case, the person designated power of attorney, typically a spouse or parent, has the right to decide whether or not to keep their loved one alive or to "pull the plug.
Many people would prefer to be kept alive no matter what. In either case, it's very important that you draft a living will so your wishes are honored. There are simple DIY forms on the Internet for each state that can be filed for little cost.
In the next section, we'll take a look at some of the most famous and outrageous wills people have made. The most famous " right to die " case in the United States was that of a Florida woman named Terri Schiavo. After suffering cardiac and respiratory arrest at the age of 26, she lived in a persistent vegetative state for eight years before her husband petitioned the courts to have her feeding tubes removed to allow her to pass away.
The Schiavo case became a political firestorm, with both the left and right arguing their cases for the right to die or to be kept alive. Appeals were made, arguments were heard and emergency laws were passed to try and block the removal of her tube.
She was moved back and forth from hospice to hospital and had her feeding tube removed and reinserted numerous times. Schiavo had no living will, so it was left up to the courts to rule whether or not she would have wanted to be kept alive by a machine.
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