A will attorney can be of great assistance to you when you are putting your estate plan together, but many people have different ideas. If you were to search the Internet looking for estate planning solutions, you would invariably come across websites that sell do-it-yourself estate planning worksheets and templates. You may get the idea that it is easy to create a last will on your own using automated tools that you purchase online.
Technically, any adult who is of sound mind can execute a will that could be deemed valid in the eyes of the law. However, there are certain specific requirements that must be met for a will to be valid in the state of Indiana. When a will has been executed, there is a process called probate that enters the picture. The executor that is named in the will is required to admit the will to probate, and the court supervises the administration of the estate.
During probate, there is a proving of the will. The probate court examines the will to determine whether or not it has been properly executed. Since the will is going to come under a great deal of scrutiny during probate, if you create your will on your own without any legal guidance, there could be difficulties. In fact, a few years ago legal experts who were engaged by the highly respected magazine and website Consumer Reports found problems with wills that were created using worksheets and downloads that were purchased online. The magazine recommended against do-it-yourself estate planning.
Additional Food for Thought
If you speak with a will attorney when you are planning your estate, and you gain an understanding of all of the facts, you may decide that a last will is really not the right vehicle of asset transfer for you and your family.
There is much more to the estate planning process than the knee jerk creation of a last will. Getting back to the process of probate, it is not entirely positive for the people who are waiting for rightful inheritances. They receive nothing while the process is underway, and it will typically take close to a year even if there are no complications at all. Expenses accumulate during probate, and it is a public proceeding, so interested parties can find out how the decedent distributed his or her property.
A will attorney would explain other options to you in detail. One probate avoidance tool that people often utilize is the revocable living trust. You retain control of the assets that you convey into this type of trust while you are living, because you can act as the trustee.
After you die, a successor trustee that you name in the trust declaration can distribute assets to the beneficiaries in accordance with your wishes. The pitfalls of probate would be avoided, because these distributions would not be subject to the probate process.
The avoidance of probate is one benefit, but there are others. Many people become unable to handle their own finances late in their lives due to incapacity. When you establish a living trust, you could give the successor trustee the power to administer the trust in the event of your incapacitation. This is an important factor to take into consideration, because about 45 percent of people who are 85 years of age and older suffer from Alzheimer’s disease, and this is not the only cause of incapacity.
In addition to the incapacity planning benefit, there is also a spendthrift protection facet. If you use a will to facilitate the distribution of your assets, you would be allowing for direct, lump sum inheritances all at once. This can be disconcerting, because some people on your inheritance list may not be capable of handling large sums of money appropriately.
With a living trust, you can include a spendthrift provision. It would become irrevocable after you die, so creditors holding judgments against the beneficiaries would not be able to go after the principal. Plus, you don’t have to instruct the trustee to distribute all of the assets in the trust right after you pass away. You could allow for incremental distributions over an extended period of time.
Attend a Free Seminar
A living trust can be a good choice for a wide range of people, but there are other possibilities that are more appropriate when certain circumstances exist. If you would like to learn all the facts, attend one of our free seminars. There are a number of sessions coming up in the near future, and you can visit our seminar page to get all the details.
To learn more, please download our free what is included in my Indiana estate plan here.
Paul A. Kraft, Estate Planning Attorney
Mr. Kraft assists clients primarily in the areas of estate planning and administration, Medicaid planning, federal and state taxation, real estate and corporate law, bringing the added perspective of an accounting background to his work.
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