Recently in Wills Category

June 8, 2011

We've Moved!

Ask Liza's new URL is http://blog.nolo.com/estateplanning/.

See you there!

June 2, 2011

Writing a Simple Will

Will being signed.jpgDear Liza: My best friend of 26 years would like to write up a will. She has a 5 year old daughter, whom does not have a god mother. Both of my best friends parents are dead and the daughters father is not in her life, nor has he been since her birth. My best friend asked my husband and I if we would be her daughters "guardian" if anything should happen to her. We were honored and happily accepted! The problem is, how do we word the will so it is legal? The good news is that it's pretty easy to write a valid Will. There are not a lot of hidden 'gotcha's' in doing a Will (unlike a living trust, as you can see from the blog post immediately before this one). Your friend should go to www.nolo.com and use their simple online Will, or purchase WillMaker software, or purchase or go to the library and get a Nolo book like, Nolo's SImple Will Book, and use their suggested language. Your friend needs to say that she wants you and your husband to serve as the guardians of her minor child and that her child's biological father is not part of her daughter's life, and that placement with him would not be in the child's best interest.

Both of you need to know that she is only nominating you two to serve in her Will -- if your friend were to die, a judge would ultimately have to make the guardianship appointment in the best interest of the daughter. A judge will certainly try and honor a parent's nomination via a
Will, but when there's a living parent out there, unless they've legally abandoned that child (which this father may in fact have done), a judge has to take their parental rights into account as well. If that parent doesn't want to take custody of the child, the court can certainly also appoint a guardian without severing that parent's parental rights.

The bottom line is GET THAT WILL DONE. Writing down her wishes for her daughter is the best way your daughter can try and make sure that the right people take care of her daughter if she can't.

She should sign the Will in front of two witnesses who don't benefit from the Will in any way. And all of these self-help resources can walk you through the process.

May 31, 2011

Madame Clark-Reclusive Heiress to Huge Fortune Dies at 104

french doll.jpgEstate planning in the news. This week, Huguette Marcelle Clark, heiress to her father's copper fortune, thought to be close to one-half a billion dollars, died at 104, after living for decades in New York hospitals. Reportedly, her accountant and lawyer were the only people in close contact with her. Her passion was for fine French dolls. No news yet on the fate of her fortune. Stay tuned. There will almost certainly be more on this story in the coming weeks. It has it all: a recluse; a fortune; close advisors; an estranged family; a vulnerable old person.
April 10, 2011

Durable Powers of Attorney: Not Dead Yet Documents

Will being signed.jpgDear Liza: My brother died a few days ago and hadn't updated his will since the 80's. His wife has Alzheimer's. They named each other as executrix, however they did durable POA on each other naming my sister-in law's cousin. Do we need to go to court to be able for her(representing my sister in law) to access the deceased accounts that are in his name only? Like so many of the excellent questions that I get on this blog, the answer is, I'm afraid, "It depends." Your sister-in-law is the executor of your brother's Will. Your sister-in-law is incapacitated by Alzheimer's. So, you are correct in looking to her Durable Power of Attorney to see who is legally authorized to act on her behalf. I always tell my clients that the Durable Power of Attorney is the "not dead yet" document--for those who grew up, like I did, watching Monty Python, you'll get the reference. My point is that a POA is to be used when the Principal, the person who signed it, is not dead, but unable for some reason to manage their own affairs. You do not need to go to court for the Agent (your sister-in-law's cousin) to have authority to act for your sister-in-law with respect to her assets, provided the POA is valid and authorizes her to do so.

But, here's where it gets a bit more complicated: the assets in your brother's name may need to go through probate before they can be transferred, or used for, his wife's benefit. He's dead, so his POA no longer is the controlling document (the Will is). What you need is someone legally authorized to act on behalf of your brother's estate--and that depends on whether or not you need a probate. If you do, the court has to appoint that person. If you don't, your sister-in-law's cousin may be able to act on your sister-in-law's behalf under that POA, but only if the POA authorizes such action.

The necessity of a probate depends on how much he had, where you live, and what his Will says. You need to find out what the 'small estates' procedure is for your state--in my state (California) assets worth less than $100K in total (with an exception for real property which I won't get into) can be transferred without a probate procedure, but that limit is different in each state. It also matters what your brother's Will says--did he leave everything to his wife? Did he give it to her outright or in a trust? This will also determine whether or not a probate is required and what kind of probate (many states have an expedited procedure for surviving spouses). If a probate is required, your sister-in-law's cousin could petition to be named as the executor, since your brother's wife isn't capable. But again, it depends whether he named a second choice in his Will, and whether or not that person wants to serve. 

 If it turns out that your brother's estate doesn't require a probate, your sister-in-law's cousin, acting on behalf of your sister-in-law as her Agent under the POA, may be able to transfer the assets, but you'll need to use your state's small estates procedure to do that and the POA would have to permit such action.

 It sounds like consulting with an attorney would be worth it, since you've got several issues to unravel. Good luck.

March 18, 2011

Wills and Children from prior marriages

  Will being signed.jpgDear Liza: I am writing my first Will. I have two children with my current husband. He has one surviving child from his first marriage. I don't want her to receive anything if my husband dies before I do, I just want my two kids to inherit what I leave behind. I am not sure what to do? I think that the best thing to do in a situation like this is for your Will to be super clear. Name your children with your husband. State that he has a daughter from his previous marriage. Then make sure that your Will says that you have not adopted this child, do not have a parent/child relationship with her and that she is not to be considered a child for purposes of your Will, but that this term should only apply to your two, mutual children. Better to say this in the Will itself and not rely on anything separate from it, since things like that can get lost. If you are using software to do this Will, only list your two children. Usually you can add a new paragraph on your own, somewhere, to acknowledge this unadopted step-daughter and clarify your wishes with respect to her. If the software won't let you do this, see a lawyer who can draft just what you need.

February 27, 2011

You Can't Give Away What You Don't Own

red car.jpgDear Liza: My husband and I lent my father our car after his was stolen. We continued to maintain the vehicle and it is still in my husband's name. My father made partial payments on it while he used it, but we'd paid for the first three years on the loan. Everybody in the family knew that if anything happened to my father, we were supposed to get the car back. My father recently died, and in his Will he left his property and his vehicle to my brother. Does my brother get our car?  You can't give away what you don't own. If the car is still registered to your husband, your father's Will certainly can't 'give' it to your brother. Your father's Will only applies to the property owned by your father at his death. This sort of situation is one of the many reasons that it's a terrific idea to write down interfamily loans and arrangements like this car loan--what 'everybody knows' sometimes changes after there's been a death in the family.
February 20, 2011

When Divorced Parents Disagree on Guardians

Will being signed.jpgDear Liza: What if divorced parents disagree on a guardian? In the case of joint legal custody, with visitation for one parent, are the wishes of the parent with physical custody granted, or does it solely depend on who dies first? Or does it also depend on which state? It is always unfortunate when divorced parents cannot agree on who should take care of minor children. I always encourage my clients to try and find common ground on that, at least. But here's what happens: the first parent to die isn't going to have a say in the matter in most cases. Unless there's some compelling reason not to let the surviving parent take custody (they are in jail; they don't want to take custody; history of abuse), the surviving parent will be in charge of raising the children. That parent's Will, subsequently, will control who is then nominated to be a guardian for minor children. If you have good reason NOT to want a divorced spouse take custody should you die first, you can put that information into your Will (which will be public after your death), or put it in a side letter to be opened only upon your death. If you are seriously concerned about this, please see a good estate planning attorney in your state, so that your estate plan can appropriately document your concern and your reasons for such concern.
February 13, 2011

Write that Will, Really

Will being signed.jpgDear Liza: My husband and I have two kids, aged 5 and 2. We don't have a Will or anything written down. Most of our friends don't either. Is that so bad? You know, I totally have sympathy for you. And, believe me, you are not alone. But here's the thing, you really, really should take a little bit of time and write a Will. It doesn't have to be elaborate. It doesn't have to be expensive. For less than the cost of a date night, you can go to www.nolo.com and  write a simple, effective Will that nominates guardians for your children and puts a simple plan in place to manage assets for your kids until they're old enough to manage those assets for themselves. You can go to the library and create a Will with a book for free. You can work with a lawyer and put together an estate plan. But, here's the thing: Without a Will, a judge would have to decide who to appoint as guardians for you children until they turn 18. Without any sort of plan in place, your children would inherit everything you've left to them (equity in your house, life insurance, and anything else youv'e managed to save) when they are only 18--which, honestly, is way too young, isn't it?

There are lots of reasons responsible, caring parents such as yourselves don't get this done. Procrastination is only part of it. There's also denial, exhaustion, not knowing who to pick as a guardian; not knowing how to do it, not knowing what to do. I recently wrote a longer blog at Mamapedia.com about exactly this that I think you'll find helpful. But whatever is holding you back, please commit to getting this done, soon. In an ideal world, it will never matter. But, if it does matter, the people you love the most will so appreciate your thoughfulness in planning ahead. Think of it like that car seat, those immunizations, those trips to the dentist--one more parental thing your kids need you to do for them.

 

 

January 28, 2011

If Wills Aren't Clearly Drafted Get Help

Dear Liza: In a copy of my fathers will it states that Jane Doe is hereby appointed Executor of my Last Will, to do all lawful things to carry out its terms, with all those powers and subject to qualify, or having qualified shall die, resign or become incapacitated during the administration of my estate, I hereby appoint John Doe, or the survivor of him, to be Executor to serve.
Who is the survivor of John Doe? (there are four children, Jane and John are two of them).
Yikes, this is like an evil law school exam question. Here's the problem for you, the Will is drafted unclearly, or at least the question is confusing. I'm sort of stumped by who 'Jane" and "John" are for a start--I can't tell if we have two generations here, or an endless loop. If "Jane" is alive, though, she's first in line; then "John." If he's not alive,  "John", as you've described it (assuming here you're not talking about your father here but that second choice executor), has four survivors--each of his children (which is where I'm getting a headache, because you said that "Jane" and "John" are two of those children).

I would expect to see a reference to "survivors" in the Will section distributing money, which can be divided equally, not authority, which is not so easily divided. If "Jane" and "John" are not able to serve as executors, and indeed you need to figure out which of four people should represent your father's estate in probate, this is a situation where your family should see an attorney in your state. If your father's Will needs to be submitted to probate, you can decide who should request authority as the executor. State law sets out a priority for this role, but families can often work it out and petition the court to name the family member they've chosen.

November 30, 2010

Notarizing Those Wills, Part II

oops.jpgDear Liza: I am confused. You recently wrote a post that said NOT to notarize Wills. But, in my state we routinely have the witnesses to the Wills sign an affidavit in front of a notary public. The affidavit states that the document signed was a Will and that it was properly signed and witnessed. Our lawyer told us that by doing this, which is called making a Will "self-proving," it makes it easier to submit the Will to the probate court because it eliminates the need for the witnesses to appear after our death, unless the Will is challenged, which is rare. What's up?  Well, what's up is that I was WRONG. As one of my readers helpfully pointed out, virtually instantly, I blew it.  Here's a better answer. For a Will to be legally valid, it must be signed before two witnesses (three in Vermont). Signing a Will only in front of a notary isn't going to create a valid Will, which is what I was thinking when I wrote that earlier post. But,of course, law being the law, it gets a bit more complicated. After you create a valid Will, then, in most states (except Louisianna, which has it's own rules and also California, where I practice) you can have the witnesses sign a statement in front of a notary public that simplifies court procedures after you die.This is called a "self-proving" affidavit, and that, dear reader, is what your lawyer was talking about.