Ten Things You Should Know About How to Make Your Will
Most people want to know what the top ten things you should know about how to make your will so they can plan their estate. For instance, what are your spouses rights? Can you amend your will? Do you need witnesses? Read on to learn the answers to these and many more will questions.
#1 Will The Court Uphold My Will?
The legal definition of a will in plain english
Most people think they know what a will is. If you ask them, they’ll tell you “you say who gets your stuff when you die”. That is true. But it is a little bit more complicated than that. Before your instructions are considered to be your will the court has to recognize that writing as your will. In the eyes of the law, a will starts out as the “writing purported to be the last will of …(you the will-maker)”.
In order for that writing to be given legal effect it has to comply with certain statutory formalities. That means that the state has passed a law that has a list of requirements. Until the writing shows that it has met those requirements, it’s just a writing. The process to determine if your writing complies with the legal formalities is called “probate”.
The formalities about whether or not a writing can be considered a will differ from state to state. State laws fall into three categories. Some states have their own home-grown probate statutes. Some states have adopted the Uniform Probate Code (a model statute). The third kind of state is a hybrid, where the home-grown law has parts of the Uniform Probate Code in it. In this article our home-grown statute is going to be New York State. Our Uniform Probate Code statute will be from Maine. But in a general sense the information in this article should be useful wherever you live.
A convenient way to get your will or trust done at home is with a virtual law office.
The Legal Defintion of a Will
- Must a Will be in Writing?
- Must a Will have Witnesses?
- Can a Will be Changed or Added To?
The Legal Definition of a Will
In New York the definition of a will is “an oral declaration or written instrument, made as prescribed by (other sections of the law) to take effect upon death, whereby a person disposes of property or directs how it shall not be disposed of, disposes of his body or any part thereof, exercises a power, appoints a fiduciary or makes any other provision for the administration of his estate, and which is revocable during his lifetime.” That is a long sentence. It also refers to other sections of the law. And it also includes something called a “codicil”. In the definition the phrase, “revocable during lifetime” simply means you can always change your will if you have the mental understanding of what you are doing.
Testamentary capacity is that level of understanding the law requires you to have in order for you to be able to make a will. We talk more about that further on in this article.
Oh, by the way, here are the two provisions in New York law that refine the definition of a will, just in case you’re thinking of making your will without a lawyer in New York state. EP Section 3-2.1, and 3-2.2. Okay. If you read the New York will statute here’s a will pop quiz. Question number 1: what is a noncupative or holographic will? Question 2, what are the signing formalities to make a will in New York?
Ok. So that is a general view of a what a will is from a probate statute derived from common law and developed over many years by state legislature.
The Law Varies by State
So, in New York, a will can be in writing. A will can also be an oral declaration. A will can give away your stuff or say how it should not be given away, and that stuff includes your body. A will gives directions about how to administer your estate or exercises a power.
How to Change a Will
You change a will with a codicil. What is a codicil? A codicil is simply an add-on to an existing will. Codicil’s are executed or signed with the same formality as a will, but they don’t replace the will. A codicil adds on or amends the will in part. These days, you don’t have to do it yourself. You can get a great attorney-counseled will, trust or will amendment from home with a virtual estate planning law firm.
What Is the Uniform Probate Code Definition of a Will?
In Maine, the definition of a will is “Will. “
“Will” includes a codicil and any testamentary instrument that only appoints an executor, revokes or revises another will, nominates a guardian or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession.”
The statute does not define what a “testamentary instrument” is. To that extent I’d say it’s a bit of a circular definition. A will is a testamentary instrument. What is a testamentary instrument? A testamentary instrument is a will. What about a testamentary instrument that is not a codicil or that does more than appoint an executor, revoke or revise another will or nominate a guardian, etc. If it does more than that, is it still a will? In the Uniform Probate Code, the term will seems to be more defined by the signing or will-making formalities. Estate planning lawyers are trained to make sure your will complies with the formalities.
Uniform Probate Code Formalities for Making a Will
Maine law has these formalities for making a will: a will must be in writing and signed by the testator (will-maker) or in the will-maker’s name by someone else who the will-maker asked to sign for them, as long as the will-maker asked the other person to sign the will, and it was done in their conscious presence. The will also has to be signed by at least 2 witnesses to the signing of the will, or alternately, the will-maker tells them that he or she signed the will, and asks them to sign as witnesses shortly thereafter. This is not meant to be legal advice. Do you know why? Because will-making is complicated!
Does Will Making Need to be Complicated?
Did that clear anything up for you? Probably not. You should get the idea that there is something going on here. Most people think a will is simple. But there was nothing simple about those will definitions. Why should the law be so complicated and confusing? The reason is that this is an area of law that has been a very fertile source of dispute. Wills have been disputed over for thousands of years. That is why the law is so complicated. That should warn you that if your last wishes are important to you, you should get counsel.
So what is a will? A will is usually a writing, but in New York at least, it can be an oral declaration. The writing or oral declaration must comply with certain legal formalities in order to be recognized as your legally enforceable final wishes about the disposition of your property including your body. It can alter another will, it can leave instructions about how to administer your estate, it can exercise any powers you have.
What If I Make My Will And Then Move To Another State?
The answer is that if the will was validly made in the place where it was made, it will be valid in the state where you die. That means that you only must get it right in the state where you made the will, when you made the will, and not remake the will when you move to another state. If you move to another state, so long as your will was validly made in the state where you made it, it will still be valid. In Maine, it will also be valid if it complies with the federal Military Will statute.
Should You Make Your Own Will? Or Do You Need a Lawyer to Make a Will?
You do not need a lawyer to make a will. In fact, Maine has its own statutory form of will right in the code. You can download the Maine will form here. New York does not have a statutory form of will.
But do people really make their own wills? It is not unheard of and can work just fine. Generally, if you have simple instructions and a modest estate, you may succeed with a home-made will. But like everything else, there
are better and worse ways to make a will. If you are considering making your own will, and not consulting an estate planning lawyer, I would ask
this: how important is it to you that your instructions are carried out the way you want? How important is it to you that your instructions are carried out without delay? How important is it to you that your instructions (and property) are private? Because wills in general, and home-made wills in particular, usually do not accomplish those goals.
The good thing about making your own will is that it is cheap. The bad thing about making your own will is that it could be very expensive. How could it be expensive? Attorneys are trained to draft wills. They are trained to know what issues can cause problems in your will, and the proper way to execute a will.
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Why Cheap Wills Cost You Big Money
List of Hot Tips: When Should You Consider Hiring a Laywer?
Why Are Cheap Wills So Expensive?
Cheap wills are so expensive because they do not take the precautions necessary to avoid the most common losses of family wealth at death.
The main causes of expense in using a will for your estate plan are:
- Will contests
- Expensive probate proceedings
- Delay caused by probate proceedings
- Loss due to an unexpected situation
- You should learn what to do to prepare for an inheritance
Hotlist of Last Will and Testament Planning Considerations
Most attorneys do not charge much to make and conduct the signing of your will. That being said, there is a better way to leave your instructions than a will. Should you use a lawyer to make your will? If you have any of these legal issues you should definitely consider using an estate planning lawyer to make your will:
When Should You Consider Hiring a Lawyer to Make a Will?
- You have been married more than once and have children
- You have more than one child
- You have a blended family
- It is very important to you to have your instructions carried out
- You do not want your spouse changing your estate plan after you die
- You have made gifts to your children during your life, but want your children to have equal shares of your estate
- You are concerned that your spouse or kids will squander the assets after you die
- You have stepchildren
- Your kids have stepchildren
- You wish to disinherit someone
- You have a large estate
- You own and manage a business
- You suspect someone will contest your will when you die
- Your instructions are complicated
- You are concerned about privacy of your property or instructions after you die
- Your estate is over five million dollars
- You have a disabled beneficiary
- You have children with children about to go to college
- You have real estate in multiple states
- Your closest living blood relatives are cousins
- You are concerned that your child beneficiary will get divorce
- You are concerned that your spouse will remarry after you die
- You have real property in multiple countries
- Your spouse is not a United States citizen
- You have a substantial retirement account
- Your have an estate that will be taxed when you die
- You are concerned about the high cost of nursing homes or assisted living.
Trusts are not just a planning tool for the ultra-wealthy. Take the free 3 minute quick quiz to find out if your plan would benefit from a trust.
you simply need to know that your will won’t be given effect immediately. If you should pass away, and something needs to be done quickly, and you’re relying on a will, then forget it
Thing to Know About How to Make Your Will #2: Wills Require Probate
We define probate in another article on how to probate a will. But here, you simply need to know that your will won’t be given effect immediately. If you should pass away, and something needs to be done quickly, and you’re relying on a will, then forget it. Things do not happen quickly with wills. What kind of things? Well like evicting a tenant, enforcing a contract, selling stock, buying anything, running your business, selling your business. The list goes on and on. Think about the many things you do to manage your life that require acting in a timely manner. Well your family won’t be able to do much without going to court first. And court takes time. And even with the expedited simple probate process contained in Uniform Probate Code states, such as in Maine, probate can be drawn out by something as traumatic as a will contest or even very minor complications, like missing paperwork or the need to prove a family tree.
Do I Need a Will?
Will Basics Continued…
- Does everyone need a will?
- Alternatives to using a will?
- How to avoid probate?
How Much Property Do You Have? What Are Your Assets?
Why might you not need a will? You do not need a will if you do not own any property. Why? Because your will determines what is to be done with anything you have the right to dispose of at your death. That could be personal property, such as your jewelry, or art, or the dishes in your house. It can also be rights, such as intellectual property rights, like copyrights in works of art. It can also be real estate. If you own any property, and you care about who gets it after you die, you should have an estate plan. That estate plan may contain a will. But a plan is more than simply a will. We will talk more about estate plans later.
Purpose of Probate
Some people do not like the idea of having a will. They wish to avoid probate. What is probate? Probate is simply the legal process to recognize a writing as a will. In other words, if someone comes to court and says they have your will, there is a formal examination of that document to make sure it is the will. Probate was put in place to avoid fraud. Imagine after someone died back before there was probate. Imagine five different people all claiming that the dead person willed to each of them at death the same piece of property. How would the court decide who is telling the truth? With a body of law defining what a will is and how to prove it – that’s how! (a/k/a probate).
Probate sounds reasonable when you put it that way. So why does probate get a bad rap? Probate of a will has a bad reputation because it can be time consuming, expensive, and it can literally encourage family fights. So, if probate of wills is such a bad thing, then how can you avoid probate?
How Do You Avoid Probate?
The best way to avoid probate is by having an estate plan that relies on a well-drafted and maintained, fully funded trust agreement. Are there other ways to transfer your property at death without a will? Yes. Generally, the methods of transferring property at death without a will are called “testamentary substitutes” or more commonly “will substitutes”. The word testament means will. Wills used to be called “last will and testament”. That makes sense, because except for a very few people in history, generally, human beings do not continue to testify after death. Quoting pirates here – “dead men tell no tales”.
Here is a list of will substitutes that avoid probate: pay on death accounts, insurance policies, joint bank accounts, joint title with rights of survivorship, and a recent addition to the will-substitute list the transfer on death deed also called a Lady Bird Deed in some states. Another kind of will-substitute is called a trust. Trusts are my favorite kind of testamentary substitute. Why? Because trusts are by far the most flexible and dynamic of estate planning tools. But we’ll talk more about trusts later. Transfer on death deeds are signed and recorded like a regular deed. However, the actual change in ownership does not take place until the deed signer dies.
How Do Will Substitutes Work?
Generally, a will substitute is a contract. The contract says this: if I die, pay my property or benefit to a specified person or persons. Usually the specified person or persons is indicated in a document called a beneficiary designation. An example would be an insurance policy. Insurance is a will substitute. The insurance policy does not require probate. It does not have to involve a will. The insurance company simply needs evidence of the death of the insured, and then they pay the named beneficiary of the policy. But what if you wanted to change your beneficiary before you died? What if you made out that beneficiary designation when you first got married, and since that time, you got divorced, and remarried? What if you wanted to put a contingent in that beneficiary designation such as, to x but if x dies with children, then to x’s children, but if x dies without children then to y? You see the problem with beneficiary designations? They are a blunt instrument. They do not allow for even basic planning. The issues I just described apply to all will substitutes except for the trust. Now do you see why I favor trusts? Because with a trust you can make a plan.
A pay on death brokerage account is a contract with the broker that says, if I die, pay my account to this other person. A joint bank account is the same thing. It says to the bank, bank, you can pay either of the two people named on this bank account. If one dies, the bank can pay the other.
What Are the Benefits of Will Substitutes?
The benefit of will substitutes is that they avoid probate. They are direct and inexpensive. The downside of will substitutes is that they are too simple sometimes. What does that mean? Well, if you tell someone, listen, pay my son Bob three hundred thousand dollars when I die. What if you spend that money on a nursing home before you die? Does Bob get the money? Also remember, with a will substitute that is not a trust, the bank or insurance company or brokerage company must pay your beneficiary. They cannot hold back the money if the beneficiary has a problem. What if Bob is about to file for bankruptcy, or recently became disabled and relies on government benefits, or is still a minor at the time? What if Bob gets divorced after getting the money and he’s put that money into marital assets? The same problems could arise for any beneficiary not just Bob (think surviving spouse, etc).
What Are the Dangers of Using Will Substitutes?
Will substitutes do not protect against basic estate planning pitfalls
What if heaven forbid, Bob dies before you? Then what happens to your pay on death account? The fact is, except for the trust agreement, the other will substitutes are blunt instruments. They cannot include the contingencies that even a basic, mediocre estate plan takes into account. Yes, will substitutes will avoid probate, but you could end up losing the entire gift to an unplanned for, but very common life event. I’ll give you an example of how that works. Imagine that Mah and Pah are getting older. Pah leaves everything to Mah in his will, but when Pah dies, Mah is in a nursing home. Then Mah has to pay every penny of that gift for her cost of care. That is fine if Mah and Pah wanted that outcome. But what if they did not want that outcome? You can avoid that bad outcome with a trust.
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Thing You Should Know About How to Make a Will Number # 3: You Should Know That a Will Has No Power Until You Die
Who Is Authorized to Protect You and Your Estate?
I teach an estate planning class for non-lawyers. In that class I frequently have married couples who are my students. I always ask my students this question: If you should lose your marbles, who will manage your property? Every single time, they answer, “it will be my spouse because he’s/she’s named in my will.” A personal representative or executor named in your will has no power until you die. Therefore, if you are alive but cannot act, the will is no help.
Many people believe that their personal representative or executor in their will also has the power to protect and manage their property if they’re temporarily or permanently disabled. That is simply not true. Remember, a will contains your directions about what to do with your property after you die.
If you are alive, but unable to make your intentions known, a will is not going to help you.
So, to that extent, the will is like the finish line. The question you should ask yourself is this: what if I get to the finish line with empty pockets because I didn’t have a good estate plan? In that instance, the will has no meaning.
What Can You Do to Protect Yourself During Life?
Wills don’t have any power during your life. But you can delegate authority to someone to act for you. If you are alive, but you are temporarily or indefinitely mentally incapacitated your agent in a power of attorney, your successor trustee in your trust and your agent under your healthcare power of attorney can all act for you. While you have your mental capacity you can make a legal document that names another person to manage your property if you cannot. You can also make a legal document to name a person to make medical decisions for your, or arrange for your living conditions if you cannot. But these documents are not wills. A durable power of attorney, an advanced directive for healthcare, and a fully funded, well drafted and maintained living trust are all documents that can help you while you are alive and disabled. But not a will.
Having a good estate plan means planning for a period of incapacity. In other words, if you have a temporary or more long-term period of incapacity, your estate is vulnerable to loss. The key is, you have to make the plan before you have an emergency. You cannot add an airbag to your car after you’re in an accident. You need to buy a car with an airbag already installed. A good estate plan is like that. Most people are aware of the dangers of a car accident. Even if they haven’t experienced one, they know the dangers. But because you have never been in an estate planning accident, you don’t know you need an airbag. Or maybe you have been in an estate planning “accident” and you simply don’t know it? Think to yourself, do you know of anyone whose entire estate was lost to the cost of long-term care in a nursing home? Anyone whose estate was eaten up by probate costs or a long drawn out fight over their will? Anyone whose estate or business had to be liquidated because there was no one to manage it while they were in the hospital? Siblings who will never speak to one another again because of something in a will?
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Thing You Should Know About How to Make a Will Number # 4: You Should Know the Original Will is Required
Thing You Should Know About How to Make a Will Number # 5: You Should Know the Will Requires Witnesses
When the will is probated, there will typically be required a sworn statement from the witnesses to the will. The statement says that they witnessed the will in compliance with the legal requirements. If the will was signed many years before, it may be very difficult to find those witnesses. I believe in all fifty states that requirement can be satisfied by a self-proving will affidavit. What does that mean? Most lawyers include a self-proving affidavit in their wills these days that is made at the same time as the will. But in older wills, there may not be a self-proving affidavit. That means that if your will does not have a statement at the end sworn to by the two witnesses, when you die, your executor may have to find those witnesses and get a statement from them at the time of your death. If you think that finding will witnesses for an old will can be an expensive and time-consuming frustrating delay, you are correct. Again, why would you want to put your widow or kids through that?
Thing You Should Know About How to Make a Will Number # 6: You Should Know Wills Are Public Documents
In order for a will to be given effect, it must be probated. In order to be probated, the will has to be filed in court. The court’s file is a public record. Why should you care? You may not. But many people do care if their will is public. One reason is that they do not want the people in their lives knowing who they left their property to in their will. Another reason is that a public record of your estate and death is an invitation to opportunists and fortune-seekers.
The death of a close family member is a traumatic and stressful time for a family. Most people do not make their best decisions when they are going through the grieving process. Imagine the benefit to an opportunist or fortune-seeker to know that your beneficiary just inherited a big pile of cash? Or that your grieving widow is in a compromised state because he or she is grieving? Well, there is literally a public list of those people available online due to the probate of the will.
The other issue is that not only is your will a public document, but it will literally be served upon any disinherited heir when you die.
Imagine you’ve chosen not to give property to a specific person who would inherit your estate if you had no will. Imagine there is a good reason to disinherit that person. Now imagine at death that person gets a notice from the court with a copy of the will stating that they’re not getting anything, but they have a right to contest the will. What is that person tempted to do?
That is one reason why I say that probate can cause unnecessary family fights. I’ve seen it many times. I’ve also seen fortune seekers and opportunists make claims against estates that they never would have known about but for the probate process.
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Thing You Should Know About How to Make a Will Number # 7: You Should Know That a Will is Not an Estate Plan
Crisis -or- Preplan?
Thing You Should Know About How to Make a Will # 8: You Should Know If You Can Make a Will?
Anyone who is eighteen years or older, and of sound mind can make a will. Also, in Maine, an emancipated minor can make a will.
What Does Sound Mind Mean for Making a Will?
The mental state needed to make a will is called “testamentary capacity”. The definition of testamentary capacity is different in each state. But the definition is generally the same. You have testamentary capacity if you know what you own, who are the natural objects of your affection, and what you’d like to do with your stuff after you’ve died.
In Maine, a person is of sound mind if she or he has knowledge in a general way, without prompting, of what he or she owns (her or his “estate”) and an understanding of the disposition he or she wants to make in a will, and the people the will-maker desires to participate in their bounty. Notice, in Maine there is nothing about the “natural objects” of affection.
Every state has different case law interpreting undue influence in making a will, but generally speaking, undue influence is influence that is brought about during the making of the will, and it is brought about by a person the will-maker is dependent upon or in a confidential relationship with. Undue influence means that the will-maker may have had testamentary capacity, but the wishes of someone else were substituted for the wishes of the will-maker. Typically, where the will-maker is dependent upon the person prompting them to make the will and or the will-maker leaves property to the person they’re dependent upon or are in a confidential relationship with. In those cases, there may be undue influence that nullifies the will.
Witnesses, Oral Wills, Rights of the Surviving Spouse
Does a Will Need to Be Witnessed to Be Valid?
While we did say, that wills require witnesses, there are some circumstances where a person may be dying, and witnesses simply are not available. In those circumstances, you may still be able to make a will, even without witnesses.
A will does not need to be witnessed to be valid. If a will is substantially in the handwriting of the person who died and signed by the will-maker it may still be recognized as a valid will. The specific qualifications for an unsigned will differ by state. For instance, in Maine, an unwitnessed will is called a holographic will. If the will is not witnessed, it is valid as a holographic will if it is substantially in the handwriting of the testator (testator is a legal term meaning the person who made the will).
What About Oral Wills?
Maine doesn’t have a provision for oral wills. But New York does. In New York an oral will is called nuncupative. A nuncupative or oral will is valid in New York if it has two witnesses.
These provisions for holographic or nuncupative wills came about to allow people to make wills if they don’t have any witnesses around, or have witnesses, but nothing to write with. Why? Because sometimes people are in situations where they didn’t expect to need a will, but unexpectedly they’re in a life-threatening situation. It is far better to simply make an estate plan before the need for one arises.
Can a Will Be Revoked?
Revoked simply means to nullify or undo. If you make a will, you can, of course, change your mind, and make a new will. You can also nullify or revoke your will without creating a new will. So, yes, a will can be revoked. There are different ways to revoke a will. One way to revoke a will is to make a new will. Also, if you destroy the will with the intention of revoking it, you have revoked it. How can this cause trouble for your estate? If there is a copy of the will that was destroyed, and it wasn’t clear you meant to revoke the will.
Can My Ex-Spouse Contest My Will?
The only way your ex-spouse can contest your will is if you were required by a divorce agreement or other post-marital contractual obligation to include your ex-spouse in your testamentary plan. In most instances divorce severs the rights that your former spouse had in your estate. This is very unusual.
What Rights Does My Spouse Have in My Will?
The word “spouse” appears no less that 237 times in Maine’s Uniform Probate Code. So, as you can imagine, spouses present issues and have certain rights under the law in your probate estate. Many times, when making their will, a married couple may agree on a certain division of property when one of them dies. But it is important to remember, that if the surviving spouse does not like that division, the law may give that spouse the right to get more, or a different share of the estate. The law does not let you disinherit your spouse. That is called electing against the will.
This right is traditionally called the right to “elect” or the “right of election” of the surviving spouse. What is the right of election? It is the right of the surviving spouse to choose either to take what you left your spouse in your will, or the elective share. The elective share in New York is, as of the writing of this article, one-third of the net estate if the decedent is survived by one or more issue and, in all other cases, one-half of such net estate. That means that if you have kids with your spouse, and your spouse dies, your elective share is less.
In some states, if the spouses are living separate and apart when the spouse dies that fact will disqualify the surviving spouse from receiving the elective share. The elective share is usually not automatic either. There is typically a deadline for the surviving spouse to demand the elective share.
In some circumstances, your wife or husband can change your will after you die!
In New York the surviving spouse will not be entitled to a right of election against the will if the spouse failed or refused to provide support for the deceased spouse even though he or she had the means or ability to do so, unless such marital duty was resumed and continued until the death of the spouse having the need of support.
In New York the surviving spouse will also not be entitled to elect against the will if they abandoned the deceased spouse, and that abandonment continued until the time of the death.
In Maine the elective share, as of the writing of this article is 50% of the value of the marital-property portion of the augmented estate. You’ll notice it is only the “marital-property” portion of the “augmented” estate. The term marital property means that the longer the couple was married, the greater the share of that fifty percent. In other words, if the couple was only married 2 years, the surviving spouse is only entitled to 6% of the 50% marital elective share. Got it?
In Maine the surviving spouse is entitled to the elective share. Maine defines “spouse” in relation to your will as an individual who is lawfully married and includes registered domestic partners and individuals who are in a legal union that was validly formed in any state or jurisdiction and that provides substantially the same rights, benefits and responsibilities as a marriage.
Maine does not recognize common law marriage. However, notice in the definition of spouse it says that if the couple had a legal union formed in any state that is the same as marriage, it will be recognized in Maine. So, if the couple cohabitated in a state that recognizes common law marriage, and the couple held themselves out as a married couple, they could be considered married in Maine.
Spouses can enter an agreement to waive their right of election. These agreements have very strict formal requirements and should not be attempted without assistance of counsel.
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Thing You Should Know About a Will # 9: Wills Are Subject to Rules of Interpretation
What is Ademption?
Ademption is a rule of interpretation for wills. That means that in certain circumstances, ademption may apply to a gift given in a will. Ademption is the extinction of a gift in a will, due to the change, consumption or transfer of the item, share of stock or bank account by the testator before the testator dies. That means that if the testator says in the will, “I give Barbara my AT&T stock” and before he dies the testator sells his AT&T stock, the gift to Barbara has been wiped out by ademption. If, on the other hand, the testator says, “I give Barbara 100 shares of AT&T stock” then if there is enough money in the estate, the executor or personal representative named in the will has to go out and buy 100 shares of AT&T stock to give to Barbara.
Do you see the difference between those two gifts? If you can tell my why the one gift is void by ademption and the other gift has to be given, I will draft a free pet power of attorney for you!
In the first example the gift to Barbara is called a “specific devise”. In the second example the gift is called a “general devise”. Remember when I said that wills are more complicated than they seem? The reason is there are many rules of interpretation of wills that have evolved over the centuries. Estate planning attorneys are trained to use these rules to make sure they don’t prevent your wishes or to forward your intentions. But you aren’t even aware of these rules. So, as a result, you may accidentally create a will that does not do what you wanted.
What is Abatement in a Will?
Abatement is like ademption, but different. Abatement is when there simply isn’t enough money in an estate to pay all the debts and give the gift in the will. So, if there isn’t enough money, the gift cannot be made, the gift is called “abated”.
What is the Anti-Lapse Statute in a Will?
Imagine you’ve made a gift in your will, and the person to whom you made that gift dies first. In that case, who gets the gift? Or does the gift simply cease to exist? That question is about whether or not the gift lapses. Whenever a gift is conditional, if the condition is legal and not against public policy, if the condition is not satisfied, the gift fails, or “lapses”. An example of a conditional gift in a will is this: “I give Jane $100 on condition she survives me.”
Is The Gift in a Will Conditional?
But sometimes it isn’t obvious that the gift in the will is conditional to begin with. What does that mean? Well, if you give a gift to your sister Sue, and Sue dies before you do Sue’s children get her gift? You might answer, of course not. The gift was to Sue, not Sue’s kids. If you answered that way, you would be wrong. In Maine at least, and many other jurisdictions a gift to certain family members will not lapse if they die before you, unless you specifically say that the gift should lapse. The reason the gift doesn’t fail or lapse is because of the state anti-lapse statute. Anti-lapse statutes prevent gifts to certain family members from lapsing if those family members pre-decease you.
In order to avoid the anti-lapse statute, you have to say in your gift that you want that gift to be conditional. In other words, you would have to say, I give my sister Sue $1000, but only if she survives me. If Sue dies before me, than her gift lapses.
Thing You Should Know About How to Make a Will Number #10: A Will Verses an Estate Plan
What does a good estate plan do?
A good estate plan is not a will. Rather, it is about taking into consideration the specific goals you have and getting advice about how to reach those goals. Estate planning is about being warned against the pitfalls that have stolen away the property of other families. It’s about avoiding the common traps that have cleaved rifts in families. Bad estate plans or no estate plan at all will open you up to the potential of loss of wealth, and needless family conflict. It is not simply about avoiding probate or having a will. It is about getting good advice, and the right legal documents.
Maybe You Need a Will and Maybe You Need Something Else
A good estate plan is based on your personal situation. It is not a generic fill-in-the-blanks form. A good estate plan may include a will, but it may also include a revocable living trust, an irrevocable trust, and other supporting legal documents. With a good estate plan, there will be safeguards against loss. It will incorporate your wisdom so that your family will not be encouraged to fight after you’re gone.
A good estate plan may avoid probate, but also, and frequently more important, it will give enforceable contingency instructions if your beneficiaries should be vulnerable when you die. A good estate plan can include asset protection for you, for your surviving spouse, and for your kids and grandkids. A good estate plan can have specific instructions about sharing and using your second home or family camp for generations to come. A good estate plan will lessen or avoid estate and gift taxes. A good estate plan will be private.
Wills in Conclusion
In conclusion, yes, it is important to know what a will is. But it is even more important to know the limitations of a will and the complications that a will can cause. You should realize after reading this article that a will is not the same thing as an estate plan.
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