A will helps control the distribution of your estate after death

Do execute a will

A will is used to direct where your property goes, i.e., what specific property goes to specific people or organizations. In addition to allowing you to control where your property goes, a will streamlines the probate process for your loved ones after you pass away. Without a will, the administration of an estate typically requires a determination of your heirs. This process frequently involves hiring an attorney to file an application to determine heirship, appointing another attorney to represent the potential “unknown heirs,” and attending a hearing where multiple witnesses testify to the decedent’s family history. The time and expense can be avoided with a simple will. Further, a will can provide for additional wishes, such as designating a guardian or trust for minors or incapacitated adults.

Do make your will “self-proved” when possible

When a will is offered for probate, the applicant must prove that it is the will of the person it purports to be. Most states allow you to make your will “self-proving.” A self-proving will speeds up the probate process because the court accepts the will without requiring testimony from persons other than the executor. It can be difficult and time-consuming to locate the witnesses who signed the will as well as persons who are willing and able to testify regarding the decedent’s handwriting, specifically his or her signature.

Most states simply require the person who made the will (legally referred to as the “testator”) to execute a self-proving affidavit. The affidavit affirms the requirements to execute the will, namely that the testator is at least 18 years of age, of sound mind, and signed the will in the presence of two witnesses. A few states even allow your will to be self-proved without the affidavit, as long as it is signed and witnessed correctly. Some states, including Maryland, Ohio, Vermont, and the District of Columbia, do not allow wills to be self-proved, requiring the validity of the will to be proved in court. If your state permits self-proving wills, you should take advantage of this tool and sign a self-proving affidavit.

Do choose independent administration if available

In some states, including Texas, California, Nevada, Missouri, Illinois, and Louisiana, the testator can appoint someone in his or her will to serve as executor independently of the court’s instruction and guidance, further simplifying the administration of the estate. The independent administrator makes decisions about the estate without the need for the court to approve each act to wind down the estate. For example, let’s say a will leaves the proceeds from the sale of a house to a specific person. In this scenario, the independent administrator can hire a real estate agent and approve the sale of the house without involving the court. A dependent administration requires the court to approve each of these acts, i.e. hiring a real estate agent, approving the sale of the house and distributing the proceeds to the beneficiary.

Independent administration also makes the probate process much cheaper because the independent executor does not have to ask permission from the court for every action they wish to take in distributing estate property. Ordinarily, if you die without a will or your will does not state that your executor should be independent, all of the heirs or beneficiaries under your will must agree to allow the executor to serve independently. Selecting independent administration in the will simplifies that process.

Do avoid probate through nonprobate transfers

If you live in a state where independent administration is not an option, it might be advisable to avoid the time and expense of the probate process by using non-probate transfers. Nonprobate transfers include interests that pass by right of survivorship or under the terms of a contract, such as a joint and survivor bank account, life insurance proceeds or employee death benefits. Another option is to create a trust. A trust is an arrangement for making gifts of property and for the management of assets under which the trustee holds legal title to assets intended for beneficiaries. Typically, a settlor – i.e., the person who wishes to create a trust – conveys property to the trustee for distribution.

The settlor can direct trust property to be distributed at a specific time or upon the occurrence of an event, such as the death of the settlor. Because the trust dissolves by its contractual terms, the probate court is not involved in determining the distribution of the trust’s assets. Finally, gifting your property before you die or become incapacitated is another way to avoid the probate process. If you do not own it at the time of your death, it cannot be probated. Generally, the larger your estate, the more expensive the probate process, especially in a dependent administration.

Do execute a durable power of attorney

A power of attorney designates someone to make decisions on your behalf if you are unable to do so yourself. There are two powers of attorney: the medical power of attorney and the durable power of attorney. The medical power of attorney allows someone to make medical or other health care decisions for you if you become incapacitated. Although a medical power of attorney is highly recommended for everyone, it is of no help with regard to the management of your finances should you become incapacitated.

For financial decisions to be made on your behalf during incapacity, you need a durable power of attorney. Under this arrangement, your agent can pay your bills and participate in other financial transactions on your behalf. This includes transactions involving real property, personal property, stock and bonds, commodities and options, banking and other financial institutions, business operations, insurance and annuity, estate and trust matters, claims and litigation, money for your personal and family needs, benefits from social security, Medicaid, Medicare, or other governmental programs or civil or military service, retirement plans, and tax matters. Also, you may limit your agent’s ability to make any of these decisions. You can also choose whether to make the power of attorney effective immediately or upon your disability or incapacity. The durable power of attorney does not apply to medical or other health care decisions. Thus, it is important and recommended to have both a medical and durable power of attorney.

Do not write your own will

Handwritten or “holographic” wills are valid in most states but come with some hefty restrictions. The downside is that most holographic wills are not self-proving and require live testimony in court from one of the attesting witnesses or witnesses familiar with the testator’s handwriting. It is significantly more expensive and time-consuming to establish the validity of a holographic will, and wills are more frequently challenged when they have not been “formalized” by an attorney. Many complications can be avoided simply by hiring a well-regarded probate and estate attorney.

Do not rely on intestacy laws

People often joke that their state government “has already written a will for them.” This is a reference to your state’s intestacy laws, which distributes a decedent’s property according to their heirs at law. Although many individuals believe they would want their property distributed to their family members in the same manner provided by intestacy laws, they are often unaware of the legal intricacies that could change the distribution of their estate, such as in the case of a blended family. A will also allows the testator to choose to exclude persons from inheriting their property who would otherwise inherit under intestacy.

Do not wait too long to plan for incapacity or death

Let’s face it – no one is promised tomorrow. It is best to plan for the possibility of your incapacity or death now. It is never too early to plan, especially if you are a provider for your loved ones.

Do not create an irrevocable trust

Trusts are generally revocable and amendable by the settlor, unless expressly made irrevocable and unamendable. You never know when life circumstances might lead you to desire a change in your estate plan. A word of caution: A trust created by a written document must be revoked or amended in writing. Oral revocation will be ineffective. The same rule applies for wills. Allowing a trust – or a will – to be modified allows you the flexibility to change these documents as circumstances dictate.

Do not forget to periodically review and revise your estate planning documents

Again, life circumstances change. People marry, divorce, have children, adopt, become incapacitated, and eventually, pass away. Your estate may also change over time, for better or worse. These life changes might mean you want to change who you leave your property to or who you want to make decisions for you in the case of incapacity. It is best to periodically review these documents with your attorney to ensure that they still reflect your wishes.