According to a 2021 Gallup poll, only 46% of US adults have a will. This is a slight increase from 2016 when 44% had a will. Still, less than half of US adults have taken the time to create this important document. The poll also showed that older adults are more likely to have a will than younger adults. Of those polled who were over the age of 65, 76% said they have a will.

Dying Without a Will

If you were to die without creating a will, a state probate court would choose an administrator to manage the probate process for your estate and choose a guardian for any minor children you have, provided the children’s other biological parent is deceased or unable to care for them. The downside to this process is that the decisions the probate court and the administrator would make may not align with what you would want.

Dying without a will is known as dying intestate, and it can create problems beyond state laws dictating what happens to your assets and children. When your intentions aren’t known before you die, you set the stage for potential conflict among your family members and heirs. Without the will to use as a guide, the administrator has to guess what you would want and have the probate court approve it. This places an undue burden on the administrator, who is often a family member.

The administrator’s duties include the following:

• Locating all your living heirs and notifying them of your death
• Publishing a notice of your death so that any creditors you may have can submit their claims
• Compiling a list of your assets
• Paying off any debts and taxes that are owed
• Collecting any money owed to your estate
• Distributing any remaining assets to beneficiaries deemed valid by the probate judge

To avoid creating conflict that could cause rifts in your family, draft and execute a valid will spelling out how you want your estate distributed, who should become the guardian for any minor children, address funeral arrangements, and what should be done with your remains.

Dying With a Will

When you have a valid will, it makes life for your survivors much easier. In a will, you can appoint a person you trust to manage your estate after your death. The person you appoint is known as the executor or personal representative for your estate. A will acts as their guide.

Even if you have a will, your estate still has to go through the probate process. The first step in the process is for the named executor to file your will with the probate court. The court then determines the authenticity of your will. Upon confirming that your will is valid, the probate court officially appoints the executor, most likely the person named in your will, to carry out the administrator duties.

Avoiding Probate

Regardless of whether a person dies with a will or not, the probate process exists to help ensure the decedent’s bills and taxes are paid and that their assets are distributed fairly. Though this sounds good in principle, the probate process can be a long and expensive process. And since the process takes place in the court system, it’s open to the public and the will can be contested. For these reasons, some people create trusts for their assets before they die. Their estates can settle outside of probate court and there is less of a chance that family members can successfully contest the will.

Consult with an estate planning attorney about your options. You may be able to keep your estate out of probate and leave a better legacy for your heirs.

This article offers a summary of aspects of estate planning law. It is not legal advice, and it does not create an attorney-client relationship. For legal advice you should contact an attorney.

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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Curiously, while many people have experienced the death of their parent and the fallout that occurs if the parent had no will, the number of Americans making wills is dropping. Recently, a study by Caring.com identifies that in 2020, 25 percent fewer people have a will than in 2017. Surprisingly, older and middle-aged adults make up a substantial part of this group even though 30 percent of the people in the study believe you should have a will by the age of 35.

Many Americans feel they do not have enough assets to deem a will necessary, but unless you are destitute, you probably own a lot more than you think. Property ownership includes things like individual as well as jointly owned bank accounts, stocks and bonds, retirement accounts, real estate, jewelry, vehicles, your online digital footprint, and even pets, which are all part of your estate. You do not have to be wealthy, or even close to it, to benefit from having a will. You will also protect your family and loved ones at a time when their focus should be on grieving your loss, not administering to legal issues because you did not have a will.

Wills are subject to state law. When you die without a will, it is known as dying intestate, and the determination of the distribution of your assets becomes the responsibility of a probate court. The probate court appoints an administrator who will act as your executor, identifying legal claims against your estate, paying off outstanding debts, and locating your legal heirs. Locating heirs only occurs in the case where your property is worth more than your outstanding debts.

If you have an existing will we would be happy to review it to make sure it still reflects your wishes. If you don’t have a will we would be happy to help you create one that makes sense for your situation. Taking these steps now will bring you peace of mind, save your estate money, and protect your family and loved ones.

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 of all, what needs to happen somewhat depends on the state where your deceased loved one lived as inheritance law can be community property, common law, elective community property, and a host of other more nuanced rules and regulations. Having your affairs in order ensures inheritable assets will follow your wishes. Still, fully 67 percent of Americans are currently leaving the outcome of their life to the laws of their state should they become incapacitated or die.

Dying Intestate or Without a Will

Dying without a will is known as dying intestate, and the decedent’s state law will determine who inherits your property. This process is known as intestate succession, and without a will, surviving family members will have to abide by decisions made in probate court. If your loved one passes away and you realize there is no will after looking diligently, first contact any lawyer or financial advisor they may have worked with before. There may be an old will on file you didn’t know existed.

Preparing for Probate

No matter how old a will is, it can be probated. Check if there is a safety deposit box in a bank or a safe in their home that may contain the will. Without you listed as the signatory on a bank deposit box, you must adhere to state law to gain access. While some states permit a special petition to gain access, other states will require a full probate petition. A home safe may require a locksmith.

Compile a list of your loved one’s assets, tax returns, and financial statements. Pay particular attention to any financial statements covering the date and month of their death. Asset valuation for probate and estate tax returns hinge on date of death valuations. A significant number of assets pass outside of a will, including:

• Life insurance proceeds
• Funds in a 401(k), IRA, or retirement plan where a beneficiary is named
• Bank accounts, real estate, and other joint tenancy assets with rights of survivorship
• Assets in a payable on death (POD) bank account
• Stocks and securities in a transfer on death (TOD) account
• Vehicles or real estate with a transfer on death (TOD) title document or deed

If you locate the deceased’s information for these account types, you can claim your inheritable assets from the associated institution. These accounts can transfer readily into your name as the beneficiary and give you some extra funds if they are required to finalize the estate.

Executors and Rules of Succession

Other property not addressed in a will or a trust will follow state intestate succession law. State law will list eligible candidates to fill the personal representative (executor) role in the absence of a will. If proceedings in probate court become necessary, the court will make a selection based on the candidate list. Typically, the surviving spouse or a registered domestic partner will be the first choice, followed by adult children, parents, and siblings.

Suppose the probate court judge wants to name you as the personal representative of an estate without a will. In that case, be aware there may be complications in resolving the estate depending on its size, state law, and the complexity of the decedent’s financial situation. An estate of modest value poses far fewer challenges than delving into unfamiliar territory to untangle complex investments and financial structures.

Choosing Whether to Accept the Executor Role and Finding Professional Support

Ask yourself some basic questions before accepting this role. If you are likely to inherit the bulk of the property, you will have a strong incentive to serve as a personal representative. If you are not and you live far away, lack a rapport with other family members, forsee major conflict among heirs, or do not have the time to perform the duties adequately, it is best to decline the executor role.

It is best to consult a probate attorney to identify who inherits assets like the solely owned property with no formally listed beneficiary like a house. Your lawyer can guide you through the state’s intestate succession law to understand who is first in line for such an inheritance. A review of the property and asset information you compile will provide the information your attorney needs to advise what the next steps should be. 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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Estate planning for blended families is key to a smooth inheritance process, especially since probate rules and intestate succession law do not treat step and biological children the same when it comes to inheriting. Open communication about your estate plan is also helpful in managing heirs’ expectations.

Trying to be equitable among your heirs can be tricky, and relying on your spouse and children to work things out after you are gone is not a good plan. To create a solid plan, carve out some quiet time and identify your most important estate planning goals, including distributions of all assets.

These assets include your house, car, jewelry, other personal items, investments, retirement plans, brokerage accounts, and insurance. If you opt to gift items before your death, be certain you no longer include the asset or property in your estate plan. Even items of little financial value may be an expected inheritance from a child. The goal is to reduce tensions among family members.

Share your ideas with your spouse and agree on a basic approach, including scenarios for who might pass away first. Leaving property outright to a surviving spouse may not be the best approach as it does not ensure the children, step or otherwise, ultimately benefit. Many blended family systems use a trust to provide for a spouse while leaving their property to their children.

Stepchildren can contest a will to be treated as a full biological child if they are named in a prior will. A will that was written before a remarriage creates an opportunity to contest. Note that your stepchildren have very little chance of inheritance without a will. Dying without a will or intestate prevents your stepchildren from inheriting in all but a very few states. In states where they are eligible, stepchildren will be considered last in line to inherit because of the laws of intestate succession.

A stepchild named in a previous will can challenge on the grounds of undue influence, lack of capacity, mistake, fraud, or coercion. If the will being contested is thrown out of probate, estate inheritance reverts to the next most recent will. A stepchild must be named in at least one prior will to have “standing” to challenge the will. If all wills are invalidated, the state will treat stepchildren as intestate heirs.

Even if a biological parent in concert with a stepparent makes their wills simultaneously and identically to leave the estate to one another, a surviving spouse can change their will upon the death of the other. It is possible for a surviving spouse to change their will, excluding the stepchildren. If the original will left equal shares to biological and stepchildren, a stepchild could contest to have the most recent will invalidated.

The idea of reciprocal or mutual wills as a binding contract is not recognized in most states. Only if the will specifically constitutes a binding contract not to change the will can a mutual will be enforced. The truth is, it is far more reliable to create a trust to care for a surviving spouse and your children’s inheritance than depend on mutual wills and goodwill after you are gone.

While contesting a will is permissible under certain circumstances, there is no guarantee it will be successful. To ensure your legacy wishes are met, consult with a qualified attorney who understands the intricacies and nuances of estate planning for blended families and can provide the best advice for everyone. We hope you found this article helpful. Contact our office at (740) 947-7277 and schedule a free consultation to discuss your particular situation.

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While seniors and near seniors have seen an increase in the need to create a will, there is little follow-through on creating those wills, advanced healthcare directives, and estate plans in general. Two out of three Americans do not have crucial estate planning documents.

Caring.com

Somewhat surprisingly, the report finds that because of the COVID-19 pandemic, younger adults are more likely to engage in the estate planning process than older generations. These same younger adults were also more likely to follow through and create the legal documents.

Caring.com

The study cites four main reasons seniors and near seniors do not have a will and other accompanying estate planning documents. More than thirty-five percent say they just haven’t gotten around to it, and just under thirty-five percent state they do not have enough assets to leave to anyone. The other two reasons are that the individual does not know how to get a will and their estate plan in place or believes it is too expensive to set up. These procrastinations and misunderstandings mean that almost two-thirds of Americans have no estate planning documents. However, the majority of Americans believe you should have a will by the age of thirty-five.

Since the advent of COVID-19, law offices across the country have pivoted to virtual meetings and can even accept verified e-signatures in many circumstances. Creating these legal documents can be made simple and, in most cases, cost-effective. Getting started may be uncomfortable at first because no one particularly likes thinking about their mortality; however, you are likely to experience peace of mind when finished. If you have a spouse and family, they too will be relieved to know the issues are addressed and legal documents are in place.

There are three main estate planning documents you will encounter; wills, advanced directives, and trusts.

Wills – A will is the most common type of estate planning document and dictates several things. It will name a personal representative (executor) to handle the estate, property division, debts, taxes, and guardianships. For some, a will may be all the estate planning needed. However, additional documents such as a trust may be necessary for individuals with more extensive assets or who fear family disputes may impact the will. Dying without a valid will in place is known as dying “intestate,” for which states have laws as to how to proceed. The estate’s assets are frozen while the court assesses details and applies the state laws to disperse the deceased’s possessions. This process can be exhausting and time-consuming for the surviving family. Additionally, a percentage of your estate will pay probate fees, ranging from three to eight percent of the total estate value.

Advanced Healthcare Directives – This document stipulates a person’s desires regarding their end-of-life care or what will happen if they become incapacitated and unable to make decisions for themselves. It will also name a medical power of attorney to act on your behalf. Advanced directives will take effect during a person’s lifetime, unlike a will enacted upon that person’s death. Despite the importance of outlining your wishes for care, the survey finds one in five (eighteen percent) do not know what an advanced healthcare directive is. This directive can guide medical professionals and your family in the event you no longer can. In this age of medical technology that can sustain life more readily, an advanced directive relieves pressure on your family members when it comes time to make difficult decisions such as life support.

Trusts – A trust entity is helpful for several reasons. A trust provides more robust support than a will for individuals with larger estates, more significant amounts of property, or expectations of a disability. Like an advanced healthcare directive, a living trust takes effect upon its creation. As the trust grantor, you will put the desired property in the trust and establish a successor trustee(s). Most living trusts are revocable during your lifetime (meaning you may amend the trust document or what is in the trust) and become irrevocable upon your death. Generally, there are tax and inheritance benefits to having a trust, and the document is not a public record; therefore, your successor trustee can manage your estate privately.

Estate planning documents are more accessible than ever to create and implement in this digital age. Video conferencing and changes in laws and regulations allow you to e-sign and store estate plans online, permitting you to create your plan from the convenience and safety of your own home. By breaking up the process into smaller steps and asking yourself some basic questions, you may find that your estate plan practically writes itself. Think things through, talk things over with your loved ones, and then contact a qualified estate planning attorney. This very achievable goal is more important than ever and easier than you think. We hope you found this article helpful. Contact our office at (740) 947-7277 and schedule a free consultation to discuss your particular situation.

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The estate is all the property owned both individually and jointly, including bank accounts, real estate, jewelry, etc., and what is owed. Without an estate plan, it is very difficult to carry out a person’s wishes and can bring on a long, drawn-out probate that can be very expensive for the family. If an estate plan is in place, it can provide peace of mind for the senior adult and their family, as well as protection for the wishes of the senior.

Below are some basic guidelines for what should be included in an estate plan.

1. Will. A will provides for an executor of the estate, who will take care of managing the estate, paying debts, and distributing property as specified. The distribution of assets can be outlined in the will. This can be as broad or detailed as a person wishes. In a will, beneficiaries and guardians for minor children should be assigned. It may not seem necessary to discuss minor children when discussing seniors and estate planning, but with the rise of grandparents raising grandchildren, this may indeed be an important part of the will. A senior adult can spell out, in the will, how they want their funeral and burial to be carried out as well.

2. Living Will. A living will outline a senior’s wishes for end-of-life medical care. It can include, in as much detail as the senior wishes, what medical treatments the senior would or would not like to have in specific situations. A living will takes the stress of making those decisions off of family members and helps to keep peace in families during times that can be difficult and emotional.

3. Healthcare Power of Attorney. A healthcare power of attorney is also a key part of an estate plan. This legal document provides for someone to legally make healthcare decisions for a senior adult. A durable power of attorney will remain in effect for the senior if the senior becomes unable to make decisions.

4. Financial Power of Attorney. A financial power of attorney names an agent who has the power to act in the place of the senior adult for matters relating to finances. The durable financial power of attorney stays in effect if the senior adult becomes unable to handle their affairs. By having a financial power of attorney in place, the stress and expense of a guardianship can be avoided, and the senior has the final say in who will make decisions relating to finances.

5. Trust. Setting up a trust can be beneficial for the distribution of specific assets or pieces of property. The benefit of a trust is that it does not go through probate, as compared to a will. Property is still distributed at the death of the trustmaker, but it is done without the need of a court. This also allows for privacy of the trustmaker, where with a will and a probate, all of the deceased person’s assets and the terms of their will are made public.

Having an estate plan is necessary if you or your senior loved one wishes to have a say in what happens at the end of life and with assets after death. Consulting and planning with an elder law attorney will help to ensure that all options are explored and the best possible solution is utilized. The elder law attorney can walk you through all of the necessary parts of the estate plan, provide an explanation, and prepare the paperwork. Elder law attorneys will help take the guesswork out of estate planning.

If you have any questions about something you have read or would like additional information, please feel free to contact us. Contact our office at (740) 947-7277 and schedule a free consultation to discuss your particular situation.

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