Why Should You Not to Do Your Own Will

I suggest reading all of Tim Kalamaros's post Pro se or "do it yourself" wills on his "Teklaw" blog. Here is the first on his list reasons not to write your own Will.

1-- Even if the will is drawn up correctly, do I know how to publish and witness it correctly under the law of the place where it will be signed? Do I know who is a proper witness under the law and who is not?

Let me chime in and say that a Will is probably the least expensive and one of the most important legal documents you can have but there are some rules that must be followed. Not following the rules increases the probability that your cost saving measures will fund a college education for a lawyer's or several lawyer's children.

If you want to use Willmaker or some other computer package to draft a Will, I say fine. I think the price of the software is right for that purpose. Take the draft to a lawyer of your choice and let them review and fix any problems.

Meanwhile, go over to "Teklaw" and check out the article in full.

Probate: No Will but Joint Tenancy

What happens if a person has no Will but everything is either in Joint Tenancy or a named beneficiary.

The law calls joint tenancy a non-probate transfer. The same with insurance or 401(k) accounts that have a named beneficiary.

However, not all property has a title or a contract that creates a joint tenancy or beneficiary. That property passes by way of the intestacy statute. Take a look at Indiana's intestacy statute and decide if you like how the statute divvies up your property. If you do not, then make an appointment for a Will.

Remember, if you want more information about retaining me for a case, please give me a call at 765-641-7906.

Online Resources: Wills

Today, a small collection of resources for Wills and estate planning. Findlaw, and Cornell's Legal Information Institute have pages on Wills and estate planning that (I think) give good information to the general public (and there may be some things here for you lawyers reading this post).

Will, Wills, Lawyer, Attorney, Law - FindLaw for the Public

The "Wills" section of FindLaw's Estate Planning Center provides an overview of the different types of will documents, information on requirements for making a will legally valid, tips on updating your will, and much more.

Estate Planning | LII / Legal Information Institute

An estate is the total property, real and personal, owned by an individual prior to distribution through a trust or will. Real property is real estate and personal property includes everything else, for example cars, household items, and bank accounts. Estate planning distributes the real and personal property to an individual's heirs.

Estate planning is the process by which an individual or family arranges the transfer of assets in anticipation of death. An estate plan aims to preserve the maximum amount of wealth possible for the intended beneficiaries and flexibility for the individual prior to death. A major concern for drafters of estate plans is federal and state tax law.

Wills and trusts are common ways in which individuals dispose of their wealth. (See Estates and Trusts). Trusts, unlike wills, have the benefit of avoiding probate, a lengthy and costly legal process that oversees the transfer of assets. Sometimes, though, it will be useful to make inter vivos gifts (gifts made while the donor is alive) in order to minimize taxes. The Federal Gift Tax exempts certain levels of lifetime gifts. (See Estate Tax)

Wills: An Overview - Estate Planning and Probate

Wills are the most common way for people to state their preferences about how their estates should be handled after their deaths. Many people use their wills to express their deepest sentiments toward their loved ones. A well-written will eases the transition for survivors by transferring property quickly and avoiding many tax burdens. Despite these advantages, many estimates figure that at least seventy percent of Americans do not have valid wills. While it is difficult to contemplate mortality, many people find that great peace of mind results from putting their affairs in order.

Wills vary from extremely simple single-page documents to elaborate volumes, depending on the estate size and preferences of the person making the will (the "testator"). Wills describe the estate, the people who will receive specific property (the "devisees"), and even special instructions about care of minor children, gifts to charity, and formation of posthumous trusts. Many people choose to disinherit people who might usually be expected to receive property. For all these examples, the testator must follow the legal rules for wills in order to make the document effective.

Wills and Executing Them

What scares most about online/do-it-yourself Wills is the execution of the Wills. Execution meaning the signing of the Will. Screw this up and a perfectly written Will becomes trash. (on the other hand, a poorly written Will does not get saved by a a perfectly executed Will signing).

Take the time to read Will Execution Ceremony from ProfessorBeyer.com before doing your own Will.

One of the most crucial stages of a client’s estate plan is the will execution cere­mony — the point at which the client memorializes his or her desires regarding at-death distribution of property. Unfortunately, attorneys may handle this key event in a casual or sloppy fashion. There are even reports of attorneys mailing or hand-delivering unsigned wills to clients along with will execution instructions. See Hamlin v. Bryant, 399 S.W.2d 572, 575 (Tex. Civ. App.—Tyler 1966, writ ref’d n.r.e.). Some attorneys may allow law clerks or paralegals to supervise a will execution ceremony. This practice is questionable not only because it raises the probability of error, but because the delegation of responsibility may be considered a violation of professional conduct rules proscribing the aiding of a non-lawyer in the practice of law. See Palmer v. Unauthorized Practice Comm. of the State Bar, 438 S.W.2d 374, 376 (Tex. Civ. App.—Houston [14th Dist.] 1969, no writ). An unprofessional or unsupervised ceremony may provide the necessary ammunition for a will contestant to successfully challenge a will.

Since the earliest recognition of the power of testation, some type of ceremony has accompanied the exercise of that power. Will ceremonies help demonstrate that the testator was not acting in a casual, haphazard, whimsical, or capricious manner by furnishing proof that the testator deliberated about testamentary desires and had a fixed purpose in mind when making the will. The ceremonies also provide evidence that the will was actually made by the testator, by impressing the act on the minds of witnesses.

A proper ceremony, coupled with sensitive and tactful counseling by the attorney during the entire estate planning process, may make it easier for clients to cope with the inevitability of death. Unfortunately, attorneys have been accused of showing “little concern about the therapeutic counseling that goes on in an ‘estate planning’ client’s experience.” Thomas Shaffer, The “Estate Planning” Counselor and Values Destroyed by Death, 55 Iowa L. Rev. 376, 376 (1969). You need to remember that many clients make only one will during the client’s entire life and that the psychological effects of confronting death are strong. Even if you conduct scores of will ceremonies each

The only way to make sure that you have a properly executed Will is to get a lawyer. Of course, opinions vary.

If One Spouse Dies, How Much Does the Other Spouse Get?

The surviving spouse does not take everything.

If a spouse died with a Will, the law controlling this situation is IC 29-1-3-1. The surviving spouse takes one-half to one-third. How much the surviving spouse takes depends on if there are also children and if the children are from a prior marriage.

When a spouse dies without a Will, then IC 29-1-2-1 controls the issue. The same concept applies: how much the surviving spouse gets depends on if there are children and if the children are of a prior marriage.

If you do not like how IC 29-1-2-1 deals with your property, then you need to get a Will. If you have children from a prior marriage, you need a prenuptial agreement. If you are married, a post-nuptial agreement may be the solution.

If you wish to consult with me on a Will, or a prenuptial or post-nuptial agreement, please give me a call.


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Wills: Doing it Yourself

Thanks to Wills, Trusts & Estates Prof Blog for pointing out this USA Today article Get yourself a will: Here's a way.

I am a bit more critical of the newspaper article than was the Wills, Trusts & Estates Prof Blog . Having usual depth of USA Today, the article explains very little about the do-it-yourself Will products featured in the story. Wills, Trusts & Estates Prof Blog's Self-Help Estate Planning Techniques Publicized faults the article for this:

I would, however, have been more comfortable with a stronger warning about the major problems that often arise when individuals do self-help estate planning. You could do open heart surgery on yourself, too, but that doesn't mean it's a good idea.

I do love that phrasing of the last sentence. Reminds me of the television commercial where the surgeon is giving instruction over the telephone to the fellow about how to operate on himself. I would like a stronger warning, too.

I also find the article using the word "drafting" without explaining more scary.

Any adult of sound mind can draft a basic will on his own for a fraction of the cost of turning to a trust and estates attorney. It may not be the most comprehensive will, but at least you will have a legal document designating guardianship for your children, naming beneficiaries and specifying your last wishes. (At the same time, be sure to update beneficiary forms for any IRAs, 401(k)s and life insurance policies you have.)

Why scary? Because drafting is the least dangerous point for the do-it-yourself crowd. Execution's dangers go completely unmentioned.

The best uses for a Will drafting software package are these:

1. To get the person using the software to think about how they want to plan their estate.
2. To present a written plan for an attorney to work off of.

Trying to decide on a trust or a Will?

The Utah Business, Real Estate & Estate Planning blog has a post that does a very good job explaining how to use these tools. See SHOULD YOU HAVE A WILL OR TRUST?.

I do not generally recommend a trust without having the assets for funding one.

I treat Wills differently because of two reasons. First, without anything to fund, the amount of assets do not matter. Second, I have two many clients without assets but with minor children and a Will can establish a guardianship (something a trust cannot do).

If you are an Indiana resident needing an attorney for a Will or trust, feel free to contact me.

Dying without a Will in Indiana versus England

I will take Indiana. This story from the Times of London, Wills injustice: fit for Dickens?, is worth reading if only to make us appreciate what we got. Here is the key difference between dying intestate (without a Will) in Indiana and in England: Indiana would have let this spouse take only 25% of the estate while in England the surviving spouse got everything.

Do not think I am suggesting that dying intestate is a good thing. It is not. It is just a bit better here than in England.

Probate news

The Madison County Clerk issued a notice this week that as of April 16, 2007, Wills need to be on letter sized paper. If on legal size, a copy needs to be made on standard sized paper.

If my memory serves me at all today, the state rules required letter sized paper since some time in the early or mid- Nineties. Nothing mentioned about Wills. I have not used legal sized paper for anything for years and I wonder how many have used legal sized paper for their Wills in the past ten years.

Which then raises a question, if lawyers do not use legal sized paper is calling it legal sized quite correct?

Notarizing Wills

Somebody asked me about notarizing a Will. Wills have a particular way of signing for them to be legal. The person executing the Will and two witnesses must sign in front of one another. Notaries do not even come into the mix.