If you do not have an estate plan, you may want to make a will or living trust for the following reasons:1. Name a guardian for your minor children.
2. Set aside money for your dependents or children from a prior relationship if you are part of a blended family.3. Control who inherits your property, especially if you do not want it to pass to your legal heirs.4. Arrange for the care of your pets and animals after you’re gone.5. Fulfill a goal of gifting to a favorite charity or your alma mater.
6. Prevent will and trust disputes among your heirs.
7. Make things easier for your spouse, partner, children and other family members.8. Choose the executor or trustee who will manage your estate.
9. Make provisions for how estate taxes should be paid.
10. Create a business succession plan.
If you need to make a will or trust today, one option is to use do it yourself
estate planning software. However, the best way to ensure your will or trust is valid, and that your property will be distributed in the manner you intend, is to have an attorney prepare your estate plan.
Forms to Make a Will
If you have a small estate and your estate will be very simple to administer, you may not be interested in paying an attorney to prepare your will. A few states have authorized the use of statutory will forms. If you live in one of these states, you may be able to make your own will by using your state's
statutory will form.
What If You Don't Make a Will?
There are many reasons to make a will, and in some cases, a living trust. If you have children under age 18 and die without a will, custody of your children will be given to whomever the court appoints. Your children could end up in foster care or a group home. By executing a simple will form, you can name a guardian for your children. See guardianship. If you have a dog, cat or other pets, they could be turned over to a pound if you die without a pet trust. If you fail to make financial arrangements for their care, your animals could be euthanized within days after you die. See what happens to unwanted pets. If you die intestate, meaning without a will, state law determines who gets your property. Often, this means your property will not go to the people you want to inherit your estate. In some states, a surviving spouse only receives a life estate in the property of the deceased, with the children inheriting title to the family home. In other states, the surviving spouse inherits one half of the estate and the children receive the other half. See
spousal share. If you have no children, your surviving spouse may have to share your property with your parents or siblings. If no relatives survive you and you die without a will, your property passes to the state. See Dying Without a Will.
When you are ready to make a will, consult an estate planning attorney. You may be concerned about the cost. However, you will likely save money in the end by getting valuable advice, as well as financial and tax planning strategies, from an experienced estate planning lawyer.
Too often, people with good intentions make or change their own wills and assume they have done okay. After it is too late, it is discovered they made mistakes that caused their estate planning documents to be unenforceable. Important formalities must be followed when executing a will or trust. If you are not trained in the law, you may overlook these details. See codicils and amendments and fatal errors in execution.
What Type of Will Should You Make?
If you and your spouse are both going to make a will at the same time, you may have questions about how to make a will that leaves your property to each other. You may have heard the term joint wills and wondered what that means.Another type of will some people considering using is a will written solely in their own handwriting. This is called a holographic will. If you have thought about using this approach to making a will because it sounds easy and is free, do you know whether this type of will is valid in your state?If you plan to make a living trust or another type of trust as part of your estate plan, you will also need to make a pour-over will. This type of will needs to be drafted with the specific provisions of your living trust in mind.As you can see, there are several different types of wills. Determining which one is right for you depends on a variety of factors, including your unique circumstances and your reasons for making a will. To learn about different types of wills that can be used to make an estate plan, go to
types of wills.
You May Not Need a Living Trust If:
1. You own minimal property and have little concern about probate expenses.
2. Your property is already titled in such a way that it will automatically pass without probate through non-probate transfers, such as joint tenancy in real estate or pay on death bank accounts.
3. You have significant debt problems and want to use probate as a way to deal with creditor claims against your estate.
4. You don't have a person you trust to serve as trustee and your estate is not large enough to pay a professional trust company.
To decide if a living trust is right for you, see our free guide to living trusts.
Revocable Living Trusts
One of the primary reasons to create a living trust is to avoid the costs, delays, and public disclosure that results from having your estate pass through probate. Certain types of trusts also incorporate estate tax strategies. See more about trusts. Most living trusts are revocable which means you can revoke it at any time during your lifetime. If you make an
irrevocable trust, you cannot rescind the trust. When you establish a living trust, you sign a living trust agreement and fund the trust with your property by changing title so your assets are held in the name of the living trust. See living trust property. As the grantor, provided you also name yourself as original trustee, you have control over trust assets until you die or become incapacitated, at which time the successor trustee takes over. Upon your death, the successor trustee simply completes some paperwork with a notary and all trust property is quickly transferred to the beneficiaries without probate.
Adding a Trust Provision to Your Will
For an overview of a type of trust that takes effect only upon the death of the testator, review our section on
State Law and Your Will or Trust
The requirements for making a valid will, the laws regarding intestate succession, and probate laws vary from state to state. To ensure your property is distributed according to your wishes, you must follow the laws of the state where you are domiciled. See State Laws.
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