Everyone understands the need and benefit of having a Will. A Will ensures that, upon your death, your estate is distributed to the beneficiaries you choose in accordance with your wishes. You name the person that you want to be responsible for making that distribution. Even more important for young parents, you name the Guardian for your minor children should something tragic happen to both parents while the children are still minors. However, preparation of a Will is not required, and so many people put off the preparation. Sadly many pass on intestate (without a Will), leaving it up to state law and the courts to determine how their estates should be resolved after their deaths.
In order to save on the costs of Will preparation, some people turn to “Will Forms” they purchase in office supply stores. Others use online companies that allow them “to fill in the blanks” after which the company sends you a very “legal” looking document, suitable for framing. In most cases these Wills are valid and Will be admitted to probate in most states. (That means they will be accepted as legally valid). The problem is that these forms do not allow the client to ask the questions that need to be answered in order to ensure that the Will accurately addresses the concerns and intentions of the client. An integral part of the Will preparation process is the discussion between the attorney and the client wherein the lawyer can explain the legal significance of the terms utilized in the Will.
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For example, if you leave money or property to a good friend, other than a spouse or child, there likely will be taxes that have to be paid to the state. Is the client’s intention that those taxes be paid by the friend out of his bequest, or does the client prefer that the taxes be paid out of the residuary estate? Does the client understand what the responsibilities of a personal representative are, and can the representative be a person that is a beneficiary under the Will?
What if one of the beneficiaries predeceases the client, should that share go to the beneficiary’s children, or should it lapse and be split among the other beneficiaries? These are just some of the questions that a person executing a Will may have. A client may know how they want their property divided, but they may know what an anti-lapse statute means, or the difference between per capita and per stirpes distribution. A lawyer will be able to explain these and many other points to the client.
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