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Q.
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What happens if I die without a will?
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A.
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If you fail to plan your estate and die without a will, the law will create a plan for you. The entire system—which is set forth by statute—is too complex for a discussion here, but some surprising and frequently undesirable results can occur. The law prescribes both the persons to whom your property will pass and the division of your estate among those persons. The distributions provided by law are inflexible and may not satisfy your desires as to distribution of your estate. In addition, the amount to be distributed to your children will require a cumbersome and costly legal conservatorship if the children are minors at the time of your death.
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The problems of dying without a will are aggravated if a married couple owns a family business with fifty percent owned by each spouse. If one of the spouses dies without a will, the ownership interest of the deceased spouse, for example, may pass to the surviving spouse and minor children, and a legal conservatorship may be required to manage the portion of the business interest that passes to the minor children. The surviving spouse will have the conservatorship for the minor children as a “partner” in the family business. In accordance with the requirements of a conservatorship, the surviving spouse may have to post a bond and make a detailed periodic accounting to a court for all business transactions.
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If you die without a will and are survived by your spouse and no children, not all of your estate may pass to your surviving spouse; part of your estate may pass to your parents. Again, such a division of your property may not accurately reflect your wishes.
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If you die and are survived by your children only, leaving no surviving spouse, your entire estate will pass to your children. If they are minors, a conservatorship may be necessary to manage their property.
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| 2.
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Q.
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Is a handwritten will legal?
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A.
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A holographic will is one which is solely in the maker’s handwriting. If it meets the other requirements for a will, a holographic will can be valid.
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Holographic wills are a fruitful source of litigation, usually because they have been composed by someone who has had no legal training.
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| 3.
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Q.
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Why should my will be more than one page long?
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A.
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Your will need not be any longer than one page. Indeed, any lawyer should be able to turn out a pair of “one-pagers” for a relatively small fee.
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The problem, however, is that such a will may not accomplish your objectives for your beneficiaries. We prefer to draft wills to cover the various factual and legal situations that reasonably may arise. The alternative is to hope that, by coincidence, the will may fit the facts at your death.
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Accordingly, we may present you with a lengthy instrument. This “burden” to you may be a possible blessing to your family when they later find that you have anticipated and planned for what might have been cumbersome problems.
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| 4.
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Q.
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What property will not pass under my will?
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A.
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Proceeds from life insurance policies and retirement benefits will pass in accordance with the beneficiary designations and not under your will. In addition, property held as joint tenants with right of survivorship accounts (e.g., joint bank or brokerage accounts with right of survivorship) will pass to the surviving account holder and not under your will. Therefore, you should review your beneficiary designations and account agreements to be sure they are coordinated with your will.
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| 5.
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Q.
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What is a personal representative?
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A.
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Your personal representative is the person who will serve as the primary representative of your estate. You may be more familiar with the terms “executor” or “administrator” for such an individual.
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| 6.
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Q.
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What is “administration” of my estate?
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A.
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Administration of an estate involves the collection of assets, payment of liabilities, and distribution of properties to the beneficiaries or heirs. Administration of an estate is conducted under some degree of court authority and supervision, but different procedures are available. The three basic types of procedures available are called “informal,” “formal,” and “supervised.” Generally, the “informal” proceedings for the probate of a will are administrative (rather than judicial) in nature. An informal proceeding may administer the estate without continual court involvement and will mature into a final settlement of the estate after the passage of a specific length of time. “Formal” proceedings are initiated by a petition to a court, and a formal proceeding becomes effective only after notice to interested persons, a hearing, and an order of court. “Supervised” administration is a single continuous proceeding requiring formal procedures and frequent court involvement.
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Some of the factors that we will consider in determining which procedures or devices to use are: (1) the value of your estate subject to administration; (2) the applicable statute of limitations; (3) the degree of trust, co-operation, and agreement among the beneficiaries and creditors of your estate; (4) your express wishes regarding administration, as stated in your will; (5) the complexities of the administration; (6) the degree of protection from liability needed by the successors or by the personal representative or both; and (7) proof of title to property requirements.
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Wherever possible and appropriate, we try to use informal administration that to a large extent operates independently of court supervision. Informal administration is less cumbersome and time consuming, and therefore is less expensive.
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| 7.
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Q.
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What is a trustee?
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A.
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A trustee is one to whom property is transferred for the benefit of someone else (the beneficiary).
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We find that our new estate planning clients frequently misunderstand trusts. Many of our clients have heard a horror story about a trust, such as an impoverished widow-beneficiary who cannot extract enough money from the well-funded trust to maintain herself.
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Present law, well drafted trustees’ powers, and professional trustees now make this concept of trusts obsolete. A trust can be designed to produce almost any result you desire, if you fund the trust with sufficient assets. We usually recommend that trustees be given very broad and adaptable powers to provide flexibility for future events. The trustee should be empowered to do what is best for the beneficiary, without being hampered by inappropriate restrictions.
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If a trust appears suitable for your estate plan, you will want to select the trustee carefully. The family member or friend who comes to mind as a logical first choice may not really want to deal with the management of your assets. If a corporate trustee appears appropriate, we will suggest that you have a conference with a trust officer of the proposed bank or trust company. Further, you should consider giving someone, such as a committee, the power to change trustees. This could obviate the need to go to court to have a trustee removed and a successor appointed.
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| 8.
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Q.
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What is a living trust?
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A.
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A “living trust” is a trust that a person (the “Grantor” or “Trustor”) establishes during his or her lifetime. A living trust may be for the Grantor’s own benefit or for the benefit of others. The trust may be funded either during the Grantor’s lifetime or at the Grantor’s death. Revocable living trusts for the Grantor’s own benefit are appropriate in the following circumstances:
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The Grantor owns real property in another state
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The Grantor is likely to become incompetent
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The Grantor wants the disposition of his or her property to be kept private, and not in the public record
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The Grantor wants his or her property holdings to be kept private, and not in the public record
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A will contest is likely or anticipated
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The client wishes to reduce the cost of the probate proceeding
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We refer to a living trust for the Grantor’s own benefit as a “revocable management trust.”
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| 9.
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Q.
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What is community property?
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A.
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A number of states have adopted a community property system for marital property. These states use marital property law schemes that differ markedly from the states that use the common law scheme. Under the community property system, marital property generally is deemed to be owned one-half by each spouse, regardless of the legal title to the property. In community property states, marital property generally takes its character from the manner and time of acquisition.
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If you ever lived in a community property jurisdiction while married, we may perform a special review of your estate plan to account for the community property consequences.
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| 10.
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Q.
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Who will raise my minor children after my death?
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A.
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The other parent. But if the other parent is not living, this becomes a selection you can make in your will. If you fail to do so, the court will make the choice for you. Needless, to say, you should assume the responsibility for this important decision, and not leave it up to the judge.
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Clients frequently tell us that they have chosen one of their parents as the “guardian” in the event of both clients’ deaths. A quick mathematical computation may shed light on the advisability of this choice. For example, assume that the youngest child is 3 years old and the client’s parent is 58. When that child is 15 (i.e., a time at which adult-child communication can be difficult under the best of conditions), the grandparent will be 70.
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A choice other than your parents may be better for your child. You might look first to your contemporaries in your families (such as brothers, sisters, or cousins). If no family member is available or appropriate, then consider friends with children in the same age range as yours. In any case, you should consult with the proposed guardian to ensure that he or she is agreeable to assuming this responsibility.
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If you have planned your estate properly, the guardian should not experience financial strain in raising your children. We usually suggest that, upon the death of you and your spouse, a trust be established for your minor children. The trustee can be authorized to make distributions to assist the guardian and even provide funds to pay for any necessary expansion of the guardian’s home.
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| 11.
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Q.
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How frequently should I review my estate plan?
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A.
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As a general rule, we suggest that you contact us every four or five years for a conference to review your estate plan and to update the information previously provided. We also recommend that you contact us in the event of a significant change in your finances or in your family situation. While we sometimes send information to our clients regarding changes in law, we do not assume the responsibility of doing so, regardless of whether we retain the original copy of the will.
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| 12.
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Q.
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What is a power of attorney?
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A.
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A power of attorney is an instrument in writing by which one person, as principal, appoints another as agent, and it gives the agent authority to perform certain specified acts or kinds of acts on behalf of the principal. The person holding a power of attorney is known as an “attorney in fact” or “agent.” We have found that many clients want to appoint someone to act for them, particularly in the event of disability.
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Generally, a power of attorney terminates on the disability of the principal, but the Uniform Probate Code contains provisions that make a power of attorney more “durable” than under the law of some jurisdictions. Such a power of attorney is referred to as a “durable” power of attorney. Under these provisions, a written power of attorney specifically may provide that the subsequent disability or incapacity of the principal does not affect the power of the appointed attorney in fact. These provisions also permit a power that will become effective in the future at the time of disability.
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| 14.
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Q.
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What is a Living Will?
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A.
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A directive to physicians (commonly known as a living will) is a document that provides instructions to your attending physician to provide, withhold, or withdraw life sustaining procedures in the event of a terminal or irreversible condition. The directive to physicians also allows you to specify the types of treatment, like artificial hydration and nutrition that you would like to have provided or withheld. We advise you to consult with your personal physician in completing the directive to physicians.
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| 15.
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Q.
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What is a Medical Power of Attorney?
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A.
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A medical power of attorney is an instrument in writing by which you, as principal, appoint another as your agent to make health care decisions if you are incapable of doing so or are incapable of communicating with your physician.
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| 16.
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Q.
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What is a Declaration of Guardian?
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A.
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A declaration of guardian is a document in which you, as a competent adult, designate a person to serve as guardian of your person or estate in the event you become incompetent. In the event of incompetency, the guardian of your person would take charge of the care of you, and the guardian of your estate would manage your property and financial affairs. Due to these different functions, you may wish to appoint different persons as guardian of your person and guardian of your estate. Many husbands and wives, however, appoint each other in both capacities.
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Because of the widespread use of powers of attorney, we do not see many guardianships of the estate for adult persons. The need for a guardianship could arise, however, and our clients sometimes prefer to choose the person to be appointed as guardian by the court. In the event that a conservator, guardian of your estate, or other fiduciary is appointed, your attorney-in-fact is accountable to the fiduciary as well as to you, and the fiduciary will have the same power to revoke or amend the power of attorney as you would (if you were not disabled or incapacitated).
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