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Counting on DIY Will? You Better Be Sure

Posted by Nina Whitehurst | Feb 28, 2019 | 0 Comments

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If the legal documents aren't signed and notarized properly, there is a good chance that problems will arise.

A properly prepared will could have avoided many of the problems faced by a woman who thought she was protected, according to News 2 in “The power of a will and trouble without one.” Ms. Denise Cockrum explains in the news report that she's going from court procedure to court procedure and the entire issue could have been prevented with a properly prepared will.

Without a valid will, a judge must determine how to divide assets in an estate. In this case, the biggest issue concerns the family home. The mortgage for the home is in her late husband's name, even though they bought the house and maintained it together.

Here's the problem: his children from a previous marriage are legally entitled to half of his assets.

Without a will, battles among family members are common. One purpose of the will is to name an executor (also known as the personal representative) who takes charge of distributing assets, including selling a home, paying off any debts and making sure that final wishes are carried out, as the decedent wanted. Without an executor, the first battle is over who will be in charge. That can take months and delay any resolution to the estate.

If there are minor children and no will, the opportunity to determine who will take care of the children is left to the court. Someone who does not know the family will make a decision to appoint the person who becomes their guardian. It may be someone you would not have wanted to rear your kids.

The will also outlines who gets what possessions from the estate. Family heirlooms and artifacts, like china, jewelry, collections and all kinds of items hold emotional and financial value. Fighting over who gets what happens often when there's no will. That takes time to resolve.

Without an estate plan to help manage tax liabilities, there may be taxes that could have been minimized. The cost of attorney's fees to settle an estate without a will is also going to be higher than working with an attorney in the first place to create a will and other important documents.

Another surprise which families run into when there's no will is that people think the surviving spouse inherits everything. However, that is not always true. Without a will, the state law determines what happens to the estate's assets. Depending on the state, your spouse may get 50% and your kids may get 50%, or the surviving spouse might get everything. In other states, the surviving spouse receives a third.

We can advise you on creating an estate plan that fits your unique circumstances.

Reference: News 2 (Jan. 29, 2019) “The power of a will and trouble without one”

About the Author

Nina Whitehurst

Attorney at Law Nina has been practicing law for over 30 years in the areas of estate planning, real estate and business law She is currently licensed in Alaska, Arizona, California, Colorado, Oregon and Tennessee. Her Martindale-Hubbell attorney rating is the highest achievable: 5 stars in peer...

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