Nelson & Carver provides high quality estate planning, probate, and trust services. We emphasis personal planning, not standardized forms.
Our attorneys have depth of experience advising our widely diverse clients on all issues relating to their estate plans, generational transfers, and asset protection.
We advise our clients on practical estate planning strategies that preserve estates and family harmony. Our attorneys are dedicated to ensuring that each and every client creates an estate plan that achieves the client’s goals and will function without conflict during the critical moments.
Our attorneys also advise fiduciaries on all matters related to probate and trust administration. They are also experienced in representing clients entangled in estate and trust disputes.
If you are married, have significant assets, have children, or want to decide who gets your property upon your death, you probably need a will. Don’t put it off any longer. To help you get started, here are some answers to frequently asked questions.
Do I need a will?
Yes, if you want to decide who would take care of your family and how your possessions and money would be distributed if something happened to you.
In a will, you name your executor or personal representative—the person who makes sure your wishes are carried out; a guardian for your minor children; a trustee for the money and property you leave your minor children (or others); and your will also specifies how your assets not covered by contract or law are distributed, including special bequests or gifts.
If you die without a will, the state writes one for you. The court names a guardian for your minor children and divvies up your assets according to state law. If you’re single with no dependants, your parents or your siblings inherit your possessions. Friends, companions and charities do not receive any property. If you have no relatives, the state is the heir.
Is all my property distributed by my will?
No. There are three ways your property passes to your heirs at death:
1. By Will. If it goes through the will, it also goes through probate.
2. By Contract or Trust. Life insurance policies, retirement plans (including IRAs and 401(k) and 403(b) plans) and payable of death (POD) and transfer on death (TOD) investments are all contracts. The beneficiaries you designate will inherit these assets directly (bypassing probate) regardless of what your will says. Make sure you update your beneficiary designations when your life changes. If you once named your former husband and your only child at the time as beneficiaries, your present husband and subsequent children will not share those assets, even if your will leaves all your possessions to them.
Assets in a trust set up during your lifetime (a living or “inter vivos” trust) will also go directly to the beneficiaries, avoiding probate.
3. By Law. If you own property with someone else as joint tenants with right of survivorship (JTWROS), your share will go directly to the surviving owner(s). This is a much faster, smoother way to inherit property than through a will, but make sure it’s the right choice for you. If you and your companion buy a house together and you want your children to inherit your share, you should own it as tenants in common, not JTWROS. ON the other hand, if you want to make sure a special person inherits your share of property directly with minimum publicity, joint tenancy works well.
What is probate, and is it bad?
Probate is the legal procedure to determine whether a will is valid, make sure debts and taxes are paid, and distribute property that passes to beneficiaries through your will. The process is public and can be expensive and time consuming. However, probate ties up the loose ends and limits the time creditors have to make a claim on the estate.
Do I need a lawyer to write my will?
Legally, you do not need a lawyer, but practically it is an excellent idea to pay one to write your will. Software programs and will kits are more valuable as educational tools than as substitutes for professional guidance.
Even the simplest of circumstances requires some technical knowledge. For example:
Minor children cannot inherit property directly, so you will need either a living trust (set up during your lifetime) or a testamentary trust (inside the will, established when you die). There are pros and cons to each.
A lawyer can ensure that a disabled child or other relative will not be disqualified from receiving public aid by the terms of your will.
Second marriages and family farms or businesses require more sophisticated estate planning strategies.
Is a will all I need?
A complete estate plan should include a will, a durable power of attorney, a living will, and a durable power of attorney for health care. A letter of instructions is optional but helpful.
How can we help you? Contact Nelson & Allen, P.S. today.