Is there a need for a Will?

[Global Wizzo]

Will?

I went through this with my son’s death in Feb. each state has different laws. Below are a few things to consider.

1. Don’t assume the only death is going to be yours. If you, your wife and other relatives die at one time, your planned line of succession may not work.

2. A will only comes into play if you have to probate the estate.

3. If you own real property, most states require probate.

4. If you have no assets that exceed a state minimum, you can often do a Disposition without Administration or probate. This happens when you have effectively no money in the bank and minimal unsecured debt.


My advice: make sure you and your spouse have wills and they are coordinated.
If you should happen to have grandchildren, antD they are the only survivors of an accident, think about how you might want a trust structured and spell that out.
Be sure you include wording that meets legal requirements for access to all digital accounts like FB, iTunes, email, online bank accounts, etc.
Keep a password list up to date and somewhere someone you trust can find it.

Do you have things like hard drive encryption like Apple offers? if your survivors don’t have the password, data on that hard drive is gone. Read this again.

Pick your executor, build an instruction notebook and don’t assume he/she can just figure things out.

If you own property in more than one state, things just get more complicated.

If you plan to have a lawyer serve as an executor, consider a larger firm with a probate team. The team survives any individual.

Burial. Be specific and define what you want.

Ask a trusted relative or friend to review your plan and documentation, see if it makes sense to them. Is it a good roadmap?

If this sounds complicated, it can be. Read your states probate laws. It can be enlightening or terrifying. Keep your sense of humor as you do all this.

 

[Brat]

Don't put your burrial directions in your will. You will be mouldering when the instructions are read.

 

[Delawaredave5]

Friends father died. No will. All the investment accounts immediately transferred to beneficiaries. No real estate.

They were even able to sell a car titled in deceased name without a will.

I guess a will is officially needed to disperse physical property - but not sure I'd do it just for that if there's not a lot.

 

[FREE866]

Friends father died. No will. All the investment accounts immediately transferred to beneficiaries. No real estate.

They were even able to sell a car titled in deceased name without a will.

I guess a will is officially needed to disperse physical property - but not sure I'd do it just for that if there's not a lot.

Yes. I checked with estate expert and yes, no need for a Will if beneficiaries are designated in brokerage account and there are no other assets.

Thanks for all the responses!

 

[CRLLS]

Even if a Will is not required due to TODs, PODs, Small Estate, beneficiaries, etc, a Will can be a good document to instruct the person(s) cleaning up after you as to what you wanted to go where. The Will doesn't need to go thru Probate to have value. If a Will is not required for probate, it can be as simple as a few words written by hand on paper. There is no need for a lawyer to write a Will, especially in this case.

In Illinois, a Small Estate is anything <$100,000. That is a lot of dough to be left for someone to decide where it goes without some instruction from you.

 

[atmsmshr]

As said before, laws vary by state. There are DIY available online for minimal or no cost. Can be somewhat complex to understand your state regulations.

We have recently updated our:
Medical POA
Financial POA
Living Will Directive
Revocable Trust
Transfer On Death for FIDO and Credit Union accounts
TOD for paid off car title
Pour Over Will for what we missed and last wishes
No more life insurance
Clear discussions with our children, including a two page 'how to' resolve our estate.

Original documents placed in a safe deposit box that our children are authorized to access and know where the key is kept. A ridiculous $50/year.

The safe deposit box also contains:
Health, homeowner and auto insurance policies
credit card statements
FIDO and Credit Union account numbers

 

[OldShooter]

Yes. I checked with estate expert and yes, no need for a Will if beneficiaries are designated in brokerage account and there are no other assets.

Thanks for all the responses!

So you finally found someone who would give you the answer you wanted. Might as well stop now.

 

[Cobra9777]

All of our real estate and motor vehicles are jointly owned with TOD to our 2 kids 50/50. This is allowed in Texas and very easy to set up. Likewise, all of our financial assets are either jointly owned with TOD to the kids, or individually owned with spouse as primary and kids as 50/50 contingent. Also in Texas, personal effects and household goods can be informally divided by surviving family if that's all that's left in the estate.

So when one of us goes, the survivor gets everything. When the survivor goes, the kids get anything that's left, 50/50. All this happens seamlessly, outside of probate. So theoretically, no will is required.

However, DW and I each have wills, including living will, durable POA, and other documents that we did several years ago on LegalZoom. Obviously, the living will and durable POA are extremely important. The will itself is just there in case something unforeseen happens. In all likelihood, it won't ever be used for anything.

I'm quite comfortable with this set-up. We recently went through this when DFIL died and everything transferred very smoothly. His will was not needed for anything. But also, our situation is very straightforward with adult children, no divorces, no complicated assets or family scenarios. I would not hesitate to seek professional assistance for a more complicated situation, or if we lived in a state with no TOD for real estate.

 

[meierlde]

Don't put your burrial directions in your will. You will be mouldering when the instructions are read.

Actually for this the best route would be to prepay the burial (typically this is done by an insurance policy or trust with a funeral home as the beneficiary)
(Plus it means that survivors will not have to sign a guarantee for funeral costs, otherwise a living person has to sign for the costs incase the estate does not have the funds to pay, and as I understand it a prepaid funeral does not count as an asset for medicaid purposes.)

 

[FREE866]

So you finally found someone who would give you the answer you wanted. Might as well stop now.

no, not really, but it's pretty straightforward. Her assets are accounted for. My siblings and I are not exactly going to fight for "the dresser thats 50 years old"

 

[Rosedala]

Hi, if I may branch out a bit from this subject, what dos one do if there are no longer close friends or family to do a POD for an IRA and annuity? I understand these cannot be put into a Revocable Living Trust. Will they go on my Will hence on probate? Anticipating big thanks for any help.

 

[2177V]

Hi, if I may branch out a bit from this subject, what dos one do if there are no longer close friends or family to do a POD for an IRA and annuity? I understand these cannot be put into a Revocable Living Trust. Will they go on my Will hence on probate? Anticipating big thanks for any help.

I would suggest reading my comment #50.

Here is a link for a county Probate Code in California regarding this subject.

Probate - County of Alameda - Superior Court of California

I suspect your county in your state should have something similar.

Use caution when taking advice on this forum since different states have different rules.

Generally I do not see anything wrong with a POD on your IRA or Annuity. In California, POD accounts are outside probate because I read the California Probate Code which states specifically that POD accounts are indeed outside Probate. However, I do not know whether POD accounts in your own state are outside probate.

I would also suggest contacting the company managing your IRA or Annuity. They may be familiar with the rules regarding your specific state. If they informed you that you cannot set up a POD account to someone outside your family or a close friend, you may be stuck using a trust.

 

[Rosedala]

I would suggest reading my comment #50.

Here is a link for a county Probate Code in California regarding this subject.

Probate - County of Alameda - Superior Court of California

I suspect your county in your state should have something similar.

Use caution when taking advice on this forum since different states have different rules.

Generally I do not see anything wrong with a POD on your IRA or Annuity. In California, POD accounts are outside probate because I read the California Probate Code which states specifically that POD accounts are indeed outside Probate. However, I do not know whether POD accounts in your own state are outside probate.

I would also suggest contacting the company managing your IRA or Annuity. They may be familiar with the rules regarding your specific state. If they informed you that you cannot set up a POD account to someone outside your family or a close friend, you may be stuck using a trust.

I read your #50 comment, thanks so much, but your case is very different. You have a family so you can give the POD to any one in your family you choose. But you gave me the great idea of contacting my state to get their requirements, etc. and that I shall do. thank you again!

 

[2177V]

I read your #50 comment, thanks so much, but your case is very different. You have a family so you can give the POD to any one in your family you choose. But you gave me the great idea of contacting my state to get their requirements, etc. and that I shall do. thank you again!

Not having a family generates a rare situation. Generally states have probate codes which define where the assets go if there is no will or other documentation. Spouses first, children second, grandparents, etc. If there are no family, the assets may go to the state if there is no will, POD, trust, etc . You are smart to think about this. If you want your assets to go to a friend, I suggest keeping this a secret because another friend can dispute it. You may want to visit the Probate Court of your county to ask some questions. The people at the counter should steer you in the right direction but they may suggest that you consult an estate attorney if your case is complicated.

 

[Rosedala]

Not having a family generates a rare situation. Generally states have probate codes which define where the assets go if there is no will or other documentation. Spouses first, children second, grandparents, etc. If there are no family, the assets may go to the state if there is no will, POD, trust, etc . You are smart to think about this. If you want your assets to go to a friend, I suggest keeping this a secret because another friend can dispute it. You may want to visit the Probate Court of your county to ask some questions. The people at the counter should steer you in the right direction but they may suggest that you consult an estate attorney if your case is complicated.

Thank you again. Actually I do have a Will and Trust although my case is very simple, but the 2 types of accounts I had mentioned, I understand, cannot go into them. They must be designated to an individual via POD or similar. But I'll have to inquire of my NYS (my estate attorney doesn't have enough experience but hate to start another search again). Meantime, I have my Trust as beneficiary of these 2 accounts. I see you're quite knowledgeable and have all your accounts properly ready. Thanks again.

 

[2177V]

Thank you again. Actually I do have a Will and Trust although my case is very simple, but the 2 types of accounts I had mentioned, I understand, cannot go into them. They must be designated to an individual via POD or similar. But I'll have to inquire of my NYS (my estate attorney doesn't have enough experience but hate to start another search again). Meantime, I have my Trust as beneficiary of these 2 accounts. I see you're quite knowledgeable and have all your accounts properly ready. Thanks again.

Make sure there is no conflict between your will and your trust. I always consider a will and a trust as similar documents because both documents should list your assets and where the assets should go. If there is a conflict, it may require Probate Court to resolve the conflict depending on your Probate Code in your state.

I also consider a trust to be a superior document to a will. This is because a trust is usually co-signed by an estate attorney. A will isn't. Hence a will can be disputed and contested in Probate Court. It is nearly impossible to contest a Trust since the estate attorney's signature is on it.

If you have both a will and a trust, you may want to state in your will that your assets are listed in your trust and distributed according to the trust to avoid a conflict. A will can be used for non-financial things since as burial, disposition of a pet, books, low value property, etc which would be cumbersome in a trust. You should contact the person who set up the trust for you.

As I implied previously, complications occur when the estate is large or when the survivors do not get along. In that case, people need to reduce the risk by seeing an estate attorney. For people who has a small estate and there is no potential conflict with the survivors, you may be able to get away with a simple will. However, I would recommend that the will be co-signed by at least two witnesses.

 

[Brat]

In most states a will's signature must be witnessed by someone other than a beneficiary. Ideally the witness should not be a family member.

 

[OldShooter]

Make sure there is no conflict between your will and your trust. I always consider a will and a trust as similar documents because both documents should list your assets and where the assets should go. If there is a conflict, it may require Probate Court to resolve the conflict depending on your Probate Code in your state.

I also consider a trust to be a superior document to a will. This is because a trust is usually co-signed by an estate attorney. A will isn't. Hence a will can be disputed and contested in Probate Court. It is nearly impossible to contest a Trust since the estate attorney's signature is on it.

If you have both a will and a trust, you may want to state in your will that your assets are listed in your trust and distributed according to the trust to avoid a conflict. A will can be used for non-financial things since as burial, disposition of a pet, books, low value property, etc which would be cumbersome in a trust. You should contact the person who set up the trust for you. ...

Caution, caution. This is all about rev trusts aka "living" trusts. Testamentary trusts, established to hold and manage assets after death are a totally different subject.

Also be cautious taking action based on statements like this:

... I also consider a trust to be a superior document to a will. This is because a trust is usually co-signed by an estate attorney. A will isn't. Hence a will can be disputed and contested in Probate Court. It is nearly impossible to contest a Trust since the estate attorney's signature is on it. ...

I'm sure @chan2177 is a very nice and well-meaning person, but unless he/she is a trusts and estates specialist attorney in your state you would probably be better off consulting a real expert. Specifically, it is not true that a rev trust is nearly impossible to contest. Anything can be contested; the plaintiff just has to file the papers and pay the attorney and court fees.

Another thing to remember with this POD stuff is that things change. Specifically, people die and the designations must be kept carefully up to date. This is true with everything in an estate plan, of course, but if the wills do not cover everything some outside-the-wills important beneficiary revisions may be overlooked during an update.

 

[WyomingLife]

68 posts in a thread entitled "Is there a need for a will?" and climbing.

Hire a lawyer. It isn't hard. It also isn't expensive. And doing so is also prudent.

It's only expensive -- figuratively and literally -- if you don't hire a lawyer and/or do the "self lawyer" thing on the internet.

I remain dumbfounded by people who: (1) seek legal advice on the internet; and (2) offer such advice. The former have poor judgment, and the latter are both irresponsible and otherwise begging to be sued.

 

[meierlde]

Not having a family generates a rare situation. Generally states have probate codes which define where the assets go if there is no will or other documentation. Spouses first, children second, grandparents, etc. If there are no family, the assets may go to the state if there is no will, POD, trust, etc . You are smart to think about this. If you want your assets to go to a friend, I suggest keeping this a secret because another friend can dispute it. You may want to visit the Probate Court of your county to ask some questions. The people at the counter should steer you in the right direction but they may suggest that you consult an estate attorney if your case is complicated.

Given that you appear to not have first cousins, then you could search for second cousins, and name them, Of course if you want your assets to go to a charity you could do a charitable remainder trust i.e get some income now but the principal would go to the charity.

 

[OldShooter]

Given that you appear to not have first cousins, then you could search for second cousins, and name them, Of course if you want your assets to go to a charity you could do a charitable remainder trust i.e get some income now but the principal would go to the charity.

Or simply just leave it to the charity in the will. CRT gives a tax deduction that may or may not be needed. In our case we have three charities that equally share 1/3 of the estate with 2/3 going to testamentary trusts for kids and grands. No CRT.

 

[Rosedala]

Make sure there is no conflict between your will and your trust. I always consider a will and a trust as similar documents because both documents should list your assets and where the assets should go. If there is a conflict, it may require Probate Court to resolve the conflict depending on your Probate Code in your state.

I also consider a trust to be a superior document to a will. This is because a trust is usually co-signed by an estate attorney. A will isn't. Hence a will can be disputed and contested in Probate Court. It is nearly impossible to contest a Trust since the estate attorney's signature is on it.

If you have both a will and a trust, you may want to state in your will that your assets are listed in your trust and distributed according to the trust to avoid a conflict. A will can be used for non-financial things since as burial, disposition of a pet, books, low value property, etc which would be cumbersome in a trust. You should contact the person who set up the trust for you.

As I implied previously, complications occur when the estate is large or when the survivors do not get along. In that case, people need to reduce the risk by seeing an estate attorney. For people who has a small estate and there is no potential conflict with the survivors, you may be able to get away with a simple will. However, I would recommend that the will be co-signed by at least two witnesses.

Hi Vchan, thanks for the alerts. But my documents are very complete and the Will and Trust do have the same content. My Will has been signed by my estate attorney and by 2 witnesses and myself as did also the Trust. My only problem is I don't know what to do with my IRA and Annuity, but I'll have to think more and harder.

No survivals of mine fighting over inheritance lol! I don't have survivals. Only my charities. I thank you again.

 

[Rosedala]

Caution, caution. This is all about rev trusts aka "living" trusts. Testamentary trusts, established to hold and manage assets after death are a totally different subject.

Also be cautious taking action based on statements like this: I'm sure @chan2177 is a very nice and well-meaning person, but unless he/she is a trusts and estates specialist attorney in your state you would probably be better off consulting a real expert. Specifically, it is not true that a rev trust is nearly impossible to contest. Anything can be contested; the plaintiff just has to file the papers and pay the attorney and court fees.

Another thing to remember with this POD stuff is that things change. Specifically, people die and the designations must be kept carefully up to date. This is true with everything in an estate plan, of course, but if the wills do not cover everything some outside-the-wills important beneficiary revisions may be overlooked during an update.

I agree Old Shooter, but sometimes is good to read what others are saying and then CONSULT YOUR ESTATE LAWYER. I do this because my lawyer doesn't explain anything so I tell him what I read and expect him to approve or disapprove - mostly he does neither! Grrrrrrrrrrr!

I understand things and beneficiaries change so of course one must follow closely and make all necessary changes. But my problem isn't this, my problem is I don't know what to do with those 2 accounts. Honestly I don't know why the State complicates things by not accepting us putting EVERYTHING into both Wills and Trusts. Why must one be combing hairs with our possessions into documents?

Anyway, thanks again. BTW, I read it's much more difficult to contest a revocable living trust than a will...

 

[Rosedala]

Or simply just leave it to the charity in the will. CRT gives a tax deduction that may or may not be needed. In our case we have three charities that equally share 1/3 of the estate with 2/3 going to testamentary trusts for kids and grands. No CRT.

OS, I guess I already mentioned, at least in NYS, no IRS or annuities should go on Wills. Why? I haven't the slightest!!! lol!

 

[Rosedala]

Given that you appear to not have first cousins, then you could search for second cousins, and name them, Of course if you want your assets to go to a charity you could do a charitable remainder trust i.e get some income now but the principal would go to the charity.

Good idea meierlde! I'll have to look into it.

So I think this thread has been completed now. THANK YOU ALL for your valuable opinions! Bye....