Is Your Will Valid and Enforceable?

Unless your Will complies with all the technical requirements of the laws
of your state, it is invalid and unenforceable.  This means you are deemed to have died intestate... without legal authority to direct the disposition of your assets.

Intestacy should be avoided at all cost because state law takes over and directs how your property is to be distributed.

Unfortunately, this is accomplished using impersonal and very general principles regarding... the disposition of your property... the guardianship of your children... the rights of relatives, as well as who shall manage your estate.

Be careful about relying on the do-it-yourself kits. The repercussion can be severe and dramatically alter your intentions.

Never assume you don't need a Will just because everything is owned jointly with your spouse, or you only have a few stocks and a mortgaged home, or at the moment you don't have much to pass on to anyone.

The only way to guarantee your intentions about asset distribution is to have everything recorded properly.

Some advantages of a Will include:

• Disputes can be settled through the probate court
• It's typically less expensive than a trust
• The probate process can reduce the time allowed creditors to make claims against your estate
• Probate estates can select a fiscal year rather than a calender year for income tax purposes

• Lack of privacy because your files can be accessed through the records office
• Time because probate can take 6 months to 2 years or more before assets are distributed
• If you own property in more than one state, then probate needs to be held in each state
• Probate and legal fees can range anywhere from 3% to 10% of your gross estate
• If you become incapacitated, a Will isn't enough because you need a separate Durable Power of Attorney

In most states, if real property exceeds $20,000... or, if the total estate including personal effects exceeds $20,000 to $100,000... the estate must go through probate.

If your estate is under the allowed limit, a simple affidavit procedure may be substituted for the lengthy and costly probate process.

Not everything you own has to go through probate.  For example, a jointly owned asset that transfers to the surviving spouse typically avoids probate until that spouse dies.

Also, assets with named beneficiaries such as insurance policies, IRA's and annuities will avoid probate as long as the beneficiary is alive.

Probate is expensive and usually takes six months to two years... sometimes longer.  During this time, assets are usually frozen so an accurate inventory can be taken.

Nothing can be distributed or sold without court and/or executor approval. If your family needs money to live on, they must request an allowance, which could legally be denied.

The probate process is public and any interested party can see what you owned and who you owed.

Disgruntled heirs can petition for a contest that exposes your family to unscrupulous solicitors. The process itself determines the cost, length of time and what information is made public.

The Revocable Living Trust is a simple alternative to the Will.  It avoids probate, while letting you maintain control of your assets.  This is true even if you become incapacitated.