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Those individuals with a will may have moved to a different state or forgot to update their will after life events such as marriage, divorce, births, and deaths, making it ineffective. One of the ways to ensure your will remains valid is to review its contents regularly with your estate planning attorney so that it complies with your state laws and reflects your family situation.

Dying Without a Will

If a will doesn’t meet the state’s legal requirements, it isn’t valid, which is the same as not having a will. Intestate is the legal term describing a person who dies without a will or a valid will. When this happens, determining asset distribution becomes the responsibility of the state probate court. States will follow their current intestacy law, which may not reflect the decedent’s wishes.

The probate court names an administrator to compile a list of assets, pay debts, and address any state and federal taxes that must be paid by the estate.

Then the appointed administrator establishes a hierarchy of inheritors, usually beginning with spouses followed by other close relatives being first in line to receive the decedent’s assets. A court-appointed administrator charges a fee from the decedent’s estate for their services.

The Function of a Valid Will

A will is the most common type of estate planning document. Upon your death, it accomplishes several different things:

• Designating a personal representative (executor)
• Arranging to pay outstanding debts and taxes via the estate
• Naming and dividing property among heirs
• Establishing guardianship for minor children

When creating their will, many individuals will add advanced directives, trusts, and other documents for a more comprehensive estate plan to manage assets if they are ill, injured, or unable to communicate their wishes.

Legal requirements for writing a will may differ among states but include being 18 years old, having “capacity” or being of sound mind, signing the document, and having two adult witnesses who also provide signatures.

Community Property States, Common Law States, and the Unmarried

Surviving spouses in a community property state are considered joint owners of any maritally acquired property and entitled to at minimum half of the decedent’s estate. However, depending on the court’s determination, they can receive less or more than half or even the entire estate if there are no surviving children or grandchildren.

As of 2022, there are seven common law marriage states plus Washington, DC. Some states will only recognize common law marriages in relationships formed before a certain date. Additionally, some states that don’t permit common-law marriage still recognize this marriage type contracted from other states. Speaking with an estate planning attorney to determine your legal status is important.

If you’re in a relationship without legal marital status, the easiest way to provide for your partner is through joint tenants with the right of survivorship accounts (JTWROS) and payable-on-death accounts (POD). These accounts will pass directly to the named beneficiary outside of a will and the probate process.

Types of Wills

The form and structure of a will may vary:

• Simple will– This will names an executor to carry out your obligations, funeral and burial arrangements, and guardianship for minor children.
• Joint will– Some married couples have one set of wishes. Some states don’t recognize joint wills, and most lawyers discourage their clients from using them.
• Holographic will– A handwritten, unwitnessed will that is only legal in some states and typically only created in emergencies where witnesses are unavailable.
• Pour-over will– This type of will accompanies a living trust and captures any property unintentionally left out of the living trust as a safety mechanism.
• Electronic will– Some states permit remote electronically generated, signed, and stored wills.
• Testamentary trust– This trust is part of a will and goes into effect after the decedent’s probate process is complete.
• Nuncupative will– An oral or verbal will used when a person is too sick to execute a written will. This type of will is not legal in most jurisdictions.

Each of these wills is a variation of a last will and testatment and leaves instructions to follow after your death. A living will is not a last will and works differently. It outlines preferences about future healthcare treatments while you are alive and unable to communicate your wishes to loved ones or doctors.

Ensure Your Will is Legal

Laws concerning wills vary by state, and knowing your state’s requirements is crucial to create a valid will. Conducting online research and creating your own will can be risky and may not meet your state’s specific laws and regulations. An experienced estate planning attorney can assess your situation and determine what type of will best suits your needs. They provide you with the original will and a copy of the document to store in a safe location. Let your loved ones know where you keep your will and other associated documents.

Review and Update Your Will

You can change, update, or revoke your will at any time if you are of sound mind. Planning to revisit the document annually is a good practice, as major life events create the need to make changes more frequently than you think. If the probate court finds your will invalid, state intestacy laws take over.

If you want to change your will, meet with our estate planning lawyers to maintain your will’s validity and see if any changes to state law will affect your decisions. Contact our office at (740) 947-7277 and schedule a free consultation to discuss your legal matters. We look forward to the opportunity to work with you.

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There are five common errors that people make that will upend your estate planning:

Leaving money to someone while you are alive but not changing your will. Frequently people include cash gifts in their will. For instance, a favorite nephew may inherit $50,000, a childhood friend $100,000, even a housekeeper may receive $10,000 for loyal service. It is quite common when family members meet after a loved one has passed to hear that the deceased has already gifted these particular cash amounts.

The mistake is that the gift is given, yet your will continues to reflect the named individual should be given what has already been received. In the absence of an updated will reflecting the gift, the probate process will still award the individual named the cash amount or, in essence, an additional gift. While some recipients will approach the gift during their lifetime as an advancement on inheritance, others may not agree, and the argument may wind up in court.

Insufficient assets are funding your trust. You may have created your trust years ago, and its assets may have decreased in value and be insufficient to cover the costs of all the gifts associated with your trust. Your good intentions in creating the trust can evaporate, leaving some inheritors short-changed or receiving nothing at all without proper management and preservation of the trust’s assets.

It is good to remember the rule that cash gifts get paid first. For example, if you leave your sister one million dollars and the rest in trust to your children, and you die with assets totaling $1,100,000, your sister will receive her cash outright while only $100,000 will remain in trust for your children. If there is no cash to fund the trust, the trust provisions are zero-sum, and the unlucky heir will have to learn of the unfortunate circumstances.

All assets do not pass through your will. Your estate division is primarily likely to be probate and non-probate assets. Just because you believe your assets’ aggregate is enough to satisfy your gifting, not all assets will pass through the will. You must understand the difference between probate and non-probate assets. Non-probate assets often pass as a beneficiary designation or joint ownership outside of a will. Also, consider the need to deduct any outstanding debts, expenses, and taxes in the valuation of your assets.

You are adding a joint owner of accounts or real estate. Joint ownership seems a simple solution bypassing excessive planning; however, adding a joint owner can create serious problems. Yes, the bank account or piece of real estate will quickly become wholly owned by the survivor, and yet if your will is reliant on that asset to pay other inheritors, debts, expenses, or taxes, there may be a cascade of problems after you die. Adding a joint owner will often lead to will contests and even prolonged court battles, so be sure your estate planning attorney agrees that the option of joint ownership is a sound one in your particular situation.

Changes to your beneficiary designations. If you make changes to your beneficiaries without speaking to your estate planning attorney, you can create all sorts of unintended results. This situation is particularly true in the case of life insurance. For instance, the policy can pay your trust in order to meet bequests, shelter money from estate taxes, or pay those taxes. However, if you change the beneficiary, you will have to designate the money elsewhere to cover the existing bequests and estate taxes. In another case, if you have a retirement account payable to an individual inheritor but you change the beneficiary to your trust, you may create adverse income tax consequences.

These are just five of the more commonplace mistakes that can occur in your estate plan. Sadly, there are many others, so caution and professional legal advice are crucial. While it is essential to review your estate planning documents regularly and perhaps make changes, it is imperative to do so under the advice of your attorney. What may seem like a harmless amendment or change may create unintended tax consequences, cut someone out of receiving an inheritance, or worse yet, set into motion a lengthy court battle that harms family relationships. Reviewing your estate planning documents with your attorney will ensure that your desired changes will address your new need without negatively impacting your overall intentions.

We hope you found this article helpful. Contact our office at (740) 947-7277 and schedule a free consultation to discuss your legal matters. We look forward to the opportunity to work with you.

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Once probate is underway, the named executor will take the necessary steps to complete probate and notify the beneficiaries named in the will. This legal notice typically limits the time when a beneficiary can contest the validity of the will. Generally, a beneficiary (and even a person not named in the will) has thirty to ninety days to bring legal action against the decedent’s will.

Know that the vast majority of wills pass through probate without issue. The courts rightly view the will like the author’s (testator), last voice. Because the testator can no longer speak to their wishes, the courts try to adhere to the legally filed will stringently. Because of the narrow timeline for filing a will contest and the odds stacked against winning the legal challenge, most challengers will find it a fruitless and costly endeavor.

Under what circumstances then would you want to contest a will? Legally, only a person or entity with “standing” can contest a will. Standing is when the party involved in the will contest will be personally affected by the case’s outcome. Most often, this means an heir or beneficiary already named in the decedent’s last will or any preceding will. It may also include any person (usually a spouse or child) not named in the will, but because of state intestacy laws would be eligible to inherit in the absence of a will. Typically, four grounds are viable for contesting a will:

• The will’s signing lacked the proper legal formalities
• The mental capacity of the decedent to make a will is in question
• Someone leveraging undue influence over the decedent into making or changing a will
• The will’s procurement is fraudulent

Certain fact patterns may lead to a successful will contest. As an example, if a testator writes their own will, some legal formalities may be overlooked, rendering the will invalid. In particular, the “do it yourself” method for creating a will may not include all of the “what if” scenarios making the will incomplete. In another example, if the testator is experiencing isolation from family and friends, the primary beneficiary’s influence and motives regarding the estate may come into question. If the executor is trying to enforce an outdated will, the newer one should supersede the older one as long as no coercion was involved in writing the most recent version. Finally, some medical evidence may suggest the testator lacked the requisite mental ability to make a will. Occasionally the challenger to an existing will can negotiate a settlement with the estate instead of enduring a court proceeding.

Some wills include a no-contest clause, also called an “in terrorem” clause. This provision states that if anyone files a lawsuit challenging the will’s validity, they will receive nothing from the estate. While this may a powerful deterrent, it may not be allowed in the state where the will is probated.

To protect your will from being contested, even if you have limited assets, your best strategy is to have your will professionally drafted by an attorney well-versed in estate planning. Using an attorney can help protect you and your estate from future legal challenges while helping you think through who you want to inherit your money and property, and how each person should receive what they inherit.

If you would like to discuss whether a will is appropriate for you or whether you should update an existing will, we would be happy to speak to you at your convenience. Contact our office at (740) 947-7277 and schedule a free consultation. We look forward to the opportunity to work with you.

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I read that when making a will, I could leave my property to my children “per stripes.” Why is the law talking about us like we’re some kind of zebra?

The phrase is Latin and it is “per stirpes,” not “per stripes.” Some bits of property law are extremely ancient in origin and this is one of them.

If a child has died before the parent who leaves property through a will or trust, and that deceased child has passed without leaving any children, many would say that the property should be divided among the remaining children. That situation is pretty straightforward. Suppose that you had three children, and your will said to distribute the property to your children in equal shares “per stirpes.” Then one of your children died without children of their own. The “per stirpes” designation in your will would mean that your surviving children would split your property into two equal shares.

The complication comes, though, when one child has died leaving his or her own children. Let’s call those children “grandchildren.” Would you, as the parent leaving the property, want those “grandchildren” to split the share you had intended for your now-deceased child?

That would be the simplest solution and that is what “per stirpes” would do. If you had three children, and one died leaving two “grandchildren,” your will would direct that your two surviving children would get one-third each, and the surviving “grandchildren” would get one-sixth each. That is distribution “per stirpes.” The phrase means “by the branch.”

The problem there, though, is that from the grandchildren’s point of view, they get less than the other grandchildren. There are a couple of other options we can discuss with you. Or, you can do as most people do, opt for “per stirpes,” and leave it at that.

Zebras have nothing to do with it.

We hope you found this article helpful. Contact our office at (740) 947-7277 and schedule a free consultation to discuss your legal matters.

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What Happens If You Retire in Another State?

If you retire to another state, your will would probably be good, but powers of attorney vary from state to state. Documents from the “old” state might not work in the “new” one, and your documents would not be there for you when you need them.

How Does a Spouse or Ex-spouse Effect My Estate Plan?

Suppose you willed your property to your spouse and appointed that person to be your power of attorney. You got divorced, but you never got around to changing your plan. The law would usually step in to prevent your ex-spouse from inheriting, but you might be stuck with that person holding power of attorney over your property and health care.

Maybe you named your ex-spouse’s father as your executor and agent. Now he can’t stand you and blames you for the breakup.

How Do I Divide my Assets Equally to my Children?

Perhaps you willed your property to your two children equally – but now one child is addicted to opioids. Your will did not restrict how money should be spent. If your addicted child inherits a lot of money in one chunk, that money could vanish to drugs and your child’s survival might be at risk.

Or, you deeded your house to one child and made a will leaving money to your other child. Then you forgot about the deed and made another will, years later. That will split everything equally. The law would invalidate the second will as to the house because deeds supplant wills. Consequently, one child might end up receiving more value than the other. That unfairness might sour the children against each other forever.

If you got divorced, sold property, moved to another state, or did your documents more than five years ago, come see us for an estate plan check-up.

When it comes to estate planning, “once is not done.” We hope you found this article helpful. Contact our office at (740) 947-7277 and schedule a free consultation to discuss your legal matters.

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First, an executor is appointed and is normally the person named in the will. It is the executor’s responsibility to initiate the probate process. An executor can be a family member, a financial advisor, or any person the testator deemed capable of administering their estate. The executor files the will with the probate court, which initiates the probate process. A court officially appoints the executor as named in the will, giving the executor legal authority to act on the testator’s behalf.

The executor’s function is to locate and oversee all of the estate’s assets and to determine each asset’s value. The majority of the deceased’s assets are subject to the probate court, where the deceased lived at the time of their death. Real estate is an exception, and probate may extend to any county where the real estate is located.

The executor will pay any taxes and debts owed by the deceased from the estate. A notice of death is published and creditors are given a limited time to make claims against the estate for any money owed to them. If the executor rejects the claim, the creditor may take them to court, where a probate judge will determine the debt’s validity. The executor is responsible for filing the deceased’s final, personal income tax returns. The executor’s last task, via court authorization, is to distribute what remains of the estate to the beneficiaries.

Probate is required for any asset or account that does not have a joint owner or beneficiary named.  If a joint owner or beneficiary is named then the title changes automatically and probate becomes unnecessary.

If a person dies without a will, they are said to have died intestate. An estate can also be deemed instate if the will presented to the court is found to be invalid. The decedent’s assets of an intestate estate follow a similar probate process, beginning with the appointment of an administrator. An administrator functions like an executor, receiving all legal claims against the estate, paying outstanding debts, and the decedent’s taxes.

Administrators must also seek out legal heirs, including surviving spouses, parents, and children. The probate court will determine the distribution of the estate among its legal heirs. In the absence of any family or other heirs, the remaining assets go to the state.

The more complex or contested an estate is, the longer the probate process can take to finalize. The longer the process, the higher the cost. Probate without a will typically costs more than probate with a valid will, but neither scenario is inexpensive. The probate court files an estate’s assets as a matter of public record, so if you want to keep your estate private, it is best to pursue other estate planning options such as a trust.

As estate planning attorneys, we can help you determine what planning tools are best for you. Contact our office at (740) 947-7277 to schedule time for a private conversation to further determine how we can help.

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Although a will can be the primary mechanism to transfer property upon death, it does not cover all property situations. Some classes of property you are unable to distribute through a will are:

• Property held in trust – A trust will have named beneficiaries who will receive the trust’s property according to the trust terms and not based on what is in your will (unless specifically stated in the trust).
• Pay on death accounts – Informally known as PODs, the original account owner names a beneficiary(s) to whom the assets in the account pass automatically upon the owner’s death.
• Life Insurance – Life insurance benefits pass to your named beneficiary(s) in the life insurance policy and are not affected by your will.
• Jointly held property – Co-owned property is not distributed through your will. Joint tenants have an equal ownership interest in the property, and when one joint tenant dies, their interest ceases to exist. The other joint tenant now fully owns the entire property.
• Retirement plans – In a similar manner to life insurance, money in an IRA or 401(k) passes to the named beneficiary(s). According to federal law, a surviving spouse is generally the automatic beneficiary of a 401(k); however, there are some exceptions. An IRA permits you to name a beneficiary(s).
• Investments in transfer on death accounts – Some accounts holding stocks and bonds will transfer on death to the named beneficiary(s). Like POD accounts, transfers on death accounts bypass probate and go directly to the beneficiary(s).

A will does not allow you to avoid probate. By necessity, a will must go through the probate process in order to allow beneficiaries to inherit property. It can take months to get through probate, and it involves expenses like an attorney, executor, and court fees. Also, your will and everything associated with it (property you own, who your beneficiaries are, etc.) become part of the public record that anyone can access.

Keep funeral instructions outside of your will. The reality is your funeral may have already taken place before someone finds and reads your will, which can take days, even weeks. If your funeral or memorial service is important to you, the best way to help your family is to pre-plan, making arrangements with a funeral home. You can leave written instructions with the family as to your plans.

Your pets cannot inherit through your will. An animal is legally unable to inherit money or property from you. If you want your pets to be cared for after you die, leave money to a person willing to take care of your animals. The person you select can inherit your pets since a pet is considered property. You can also set up a pet trust or a pet protection agreement, either of which provides for your pet’s care.

Provisions for a child on government benefits are best in a trust. It is best to create a special needs trust to provide for a child with special needs or a child who is receiving government benefits. The trust can hold money for your child’s care without affecting those benefits.

There are ways to circumvent the limitations of a will by creating trusts, setting up pay-on-death accounts, and ensuring a beneficiary is named on all accounts that permit them. Your will is an important component of a comprehensive estate plan, but it can’t do everything.

We would be happy to discuss the pros and cons of having a will and other options available to you as part of your overall estate plan. Contact our office at (740) 947-7277 and schedule a free consultation to discuss your legal matters.

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Dying without a will (dying intestate) or dying with an invalid will cause logistic problems, becoming financially and emotionally draining on the loved ones you have left behind. In the absence of a will to name an executor, the state will provide a list of people eligible to fill the role. Should probate court be necessary, the court will make a selection based on this list.

Who Will Settle My Estate without a Will?

Typically, states make a surviving spouse or registered domestic partner their first choice. If there is no spouse or partner, then adult children usually follow next on that priority list, then parents or other closest family members related by blood. Further next of kin includes grandparents, grandchildren, aunts and uncles, nieces, and nephews.

There are rare instances where the state can find no next of kin. In this instance, your assets will wind up in the state’s coffers. Suppose your heirs are more distant next of kin. In that case, they may require an affidavit notarizing them to be heirs to the estate property and further documentation requirements to transfer ownership of assets. State intestacy laws encourage reasonable efforts by probate authorities to identify heirs in the absence of a valid will or no will at all.

In all cases, without a will, there must be a petition to the court to appoint a personal representative to settle your debts, final taxes, minor guardianship of children, and distribution of your personal property. In the absence of any legal heirs, the law permits the court to appoint any legally competent person.

What Relationships Are Acceptable for Representation without a Will?

Each state has relationship qualification requirements for intestate succession that may not be as obvious as you think. For instance:

• Surviving Spouse – must have been legally married to the decedent at the time of death.
• Legal separation or pending divorce – a judge will determine whether or not the surviving member of the couple is a surviving spouse.
• Common-law marriage – Very few states recognize common-law marriages, and each state has its own sets of circumstances for approval.
• Same-sex couples – Same-sex marriage is now legal in all 50 states and has the same rights and responsibilities as all legally married couples. Same-sex registered domestic partners or civil union partners recognition is state law dependent.
• Adopted children – in all states, legally adopted children inherit from their adoptive parents in the same manner as biological children.
• Stepchildren – Most states will not include stepchildren who were never legally adopted.
• Foster children – These children will not usually inherit as foster parenting is not adoption.
• Children adopted by an unrelated family or adult – Most states recognize that placing a child up for adoption severs the legal tie between them and their birth parents. Under intestate succession laws, neither the child can inherit from the parents nor the parents from the child.
• Children adopted by a stepparent – Depending on state law, a child adopted by a stepparent may still inherit from their biological parents.
• Children born after the parent’s death – Any child conceived before a parent’s death but born after (posthumous child) inherits just as children born during the parent’s life.
• Children born out of wedlock – These children always inherit from their birth mother unless an unrelated family adopts them. To inherit from the father, the child usually must show some paternal proof.

Inheriting under intestate succession laws may require an heir to live a certain amount of time longer than the decedent. Depending on the state, this can be 120 hours, five days, or merely having outlived the decedent for any period of time qualifies them as an heir. If an heir dies, close relatives such as the deceased person’s child may inherit all or some of what their parent would have received. Known as the “right of representation,” these children or grandchildren may be eligible as heirs though it can be complicated to establish depending on state law.

What Could Happen to My Minor Children Without a Will?

If you have minor children having a valid will allow you to name a personal guardian(s). In the absence of a will, a judge will have to appoint an interim guardian until enough information about the situation is gathered to determine the best decision for the welfare of the children.

Depending on your circumstances, a will can be a straightforward document that removes the onus on your surviving loved ones to handle your responsibilities. If you have minor children or substantial assets, your will may be part of a larger estate plan.

Don’t let the state decide who inherits your money and your property. We would be happy to help you figure out a plan that works for you. Contact our office at (740) 947-7277 and schedule a free consultation to discuss your particular situation.

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