The simple will is the most commonly used estate planning document. We are going to look at some things that you should know about wills in this post, and you may not like everything you learn about them.
You can name a guardian in a will.
Everyone knows that you can state your final wishes with regard to asset transfers in a simple will, but there is another important provision that you can include. If you are the parent of a dependent child or adult, you can designate a guardian in a will.
The court would honor your choice unless there is some reason why they determine that the individual that is named may not be able to serve the best interests of the child.
A will does not have to be notarized.
In order for a will to be valid in the state of Tennessee, it must be signed by the testator in front of two witnesses. The witnesses must also sign the will in front of the testator, and in the presence of one another.
Notarization is not necessary, but notarization provides a benefit that we will touch upon in the next section.
A will must be admitted to probate.
If you create a will to serve as the centerpiece of your estate plan, you name an executor in the document. This individual would handle the estate administration tasks, and the will would be admitted to probate, which is a court proceeding.
During probate, there is a proving of the will. The court will examine the document and contact the witnesses to confirm the signing. However, if the will has been notarized, it would be a self-proving will, and the witness contact requirement would be waived.
The executor will post a notice for creditors, and they are given time to come forward. An Employer Identification Number will be obtained from the Internal Revenue Service, and the executor will establish an estate bank account.
Assets are identified, secured, and prepared for distribution to the heirs. When everything is in order to the court’s satisfaction, the estate will be closed, and the heirs will receive their inheritances.
A will can be contested.
It is possible to contest the validity of a will during the probate process. One of the grounds is improper execution, so the witnessing requirements must be met.
Undue coercion is another reason why a will can be challenged, but you may wonder how a person can be coerced into signing a will.
Short of being held at gunpoint, many senior citizens require help with their activities of daily living. A caregiver could threaten to withhold assistance unless they are given a certain amount in a will. Extortion that does not include threats of violence can also enter the picture.
The testator must be of sound mind when the will is executed, so incapacity is one of the grounds for a contest. Fraud is the other one, and this would be present if someone is tricked into signing a will under fraudulent circumstances.
A living trust can be a far better option.
One of the most important things to know about a will is the fact that a living trust is a better choice for a wide range of people. The probate process that we explained will typically take eight or nine months at minimum, and no inheritances are distributed while the estate is being probated by the court.
Expenses will consume between three and seven percent of the estate before it is distributed to the heirs, and it is a public proceeding, so anyone that is interested can access the records.
Assets that are distributed through the terms of a living trust would not be subject to the probate process. Plus, you could provide limited distributions over an extended period of time, and you can make sure that the principle is protected from the beneficiary’s creditors.
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We are here to help if you are ready to work with an attorney to put an estate plan in place. Each situation is different, so there is no universal approach that is right for everyone.
Personalized attention is key, and this is exactly what you will receive when you choose our firm. You can schedule a consultation at our Memphis, TN estate planning office if you call us at 901-763-2500 or 866-997-6325, and you can fill out our contact form if you would prefer to send us a message.
At Mendelson Law Firm, Mr. Wachtel focuses on Litigation (Business Litigation, Insurance Defense, Commercial Collections, Subrogation, Landlord/Tenant, Automobile Litigation, etc.), Probate and Estate Planning (Wills, Estates, Trusts, Powers of Attorney).
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