Last Will and Testament

What is a Last Will and Testament?

A Will Does not Avoid Probate

Your Will is a written set of instructions to the Probate Court. You must petition the Court to accept your Will as valid and accept its instructions. Unlike a Will, a Trust-based Estate Plan avoids Probate.

A Will Names a Personal Representative

You may name someone you trust to act as the Personal Representative (Executor) of your Will. This person carries out the directives of your Will. If you do not name a Personal Representative, the court will appoint one for you. The court may even appoint one of your creditors.

A Will Should Include Asset Protection Provisions

You can incorporate a Trust into your Will to protect assets for beneficiaries in the case of law suit, divorce, or devastating life events. Since the Trust is in the Will, the Trust does not become legally valid until your death. The Will must go through Probate for the Trust to become legally operational.

A Will has no Legal Authority Until After Your Death

Your Will does not help manage a your affairs when you are incapacitated, whether by mental disability, illness, or injury.

A Will Should not be a Simple Document

Many people choose Will based Estate Planning because they believe that a Will is cheaper than a Trust. A Properly designed Will based Estate Plan should be comparable to a Trust-based Estate Plan. When including the additional expense of Probate, a Will-based plan is often more expensive.

A Will Defines Distribution

In a Will-based Estate Plan, your Will expresses your final wishes for distribution of your assets.

A Will Nominates Guardians

A Will is the place to nominate guardians for your minor children. If you do not designate a guardian for your minor children, the court will decide on a person it deems appropriate to care for your children. The court could even place your children in foster care if it deemed doing so to be the most appropriate placement.

A Will has Hidden Dangers for Disabled Beneficiaries

If someone who receives government disability benefits is a beneficiary of your Will, he or she may be disqualified for those benefits. A properly drafted Trust overcomes this concern.

A Will may Include Your Wishes for Disposition of Your Remains

You can make your wishes known about funeral arrangements, burial or cremation, and memorial services inside of your Will. However, a will is not necessary to make your wishes known regarding these arrangements. They are most often recorded in stand-alone documents.Without such a provision family members may dispute and even litigate your final arrangements.

What Happens If I Die Without a Will?

The legal term for dying without a Will is called dying “intestate.” If you die intestate, the court will decide how and to whom your property will be distributed.
The court’s distribution and guardianship orders may not be the same as your desires.
If you die intestate, you have no say in choosing your beneficiaries. The court will name your beneficiaries according to state law. You can prevent this by creating your own Estate Plan.
If the court finds no legal heirs, your assets will be distributed to the State.

Advantages of probating your Will:

Court Oversight

If your family or beneficiaries are likely to disagree due to mistrust or dysfunction, it may be advantageous to petition a court to oversee the inventory, accounting, and distribution of your assets.

Disadvantages of probating your Will:

Probate Filing

“Probate is a lawsuit that you file against yourself, with your own money, for the protection of your disgruntled heirs and creditors.” (Peter Parenti)

With a Trust-based Estate Plan, you can avoid Probate and avoid subjecting your loved ones to the costs and potential problems that accompany it.

Multiple Jurisdiction Probate

Probate must take place in each jurisdiction in which you own real estate. Generally, a Probate case is opened in the jurisdiction of the decedent’s last residence. An additional Probate proceeding in another jurisdiction is referred to as an “ancillary Probate.” You can avoid Probates in multiple jurisdictions by using a Trust-based Estate Plan.

Privacy

Probate generally requires an inventory to be filed. Both your Will and the inventory of your assets are public records. You can keep your assets and their values private by using a Trust-based Estate Plan.

Attorney’s Fees and Court Costs

Whether an attorney is charging by the hour or a flat fee, uncontested Probate fees are significant. If your Will is contested, the legal expenses can quickly become exorbitant. Proper use of a Trust-based Estate Plan can avoid the cost of Probate.

Delays

Probate proceedings may last anywhere from several months to several years. There are delays built into the Probate process to protect estate creditors and potential beneficiaries. In a Trust-based Estate Plan, your chosen Trustee does not have to wait for Court approval to take action. Your Trustee can act immediately to preserve the value of your assets, pay debts, and make distributions during Trust administration.

Case #1

Tabitha has a terminal illness and she just recently divorced from an abusive husband and is taking legal action to keep her children from their abusive father. She cannot stop worrying about her children going back to her ex-husband if she were to die before the court makes a decision.

Tabitha meets with an attorney at Idaho Law Group and designs an estate plan that instructs her Personal Representative (Executor) of her Will to expend whatever estate resources are necessary on court proceedings to find that her ex-husband is not fit to be a parent. In that Will, she nominates her sister as the Guardian for her children and nominates a good friend as a backup Guardian.

Case #2

Henry's mother, Jennifer, had an estate plan prepared by Idaho Law Group.

Jennifer just died, and now her son, Henry, is administering her Trust. When going through his mother's records, Henry finds out that his mother inherited a home from her aunt, but the home was never transferred into her Trust. Henry comes to Idaho Law Group seeking advice on what to do.

The attorney shows Henry that his mother had both a Trust and a "Pour Over Will." The Pour Over Will was created to probate any assets which Jennifer failed to transfer into her Trust. The beneficiary of Jennifer's Pour Over Will is the Trust (the will "pours over" into the Trust).

The attorney explains to Henry that he was appointed as the Personal Representative of the Pour Over Will and that he needs to file a probate petition to transfer the home into Jennifer's Trust.

All of Jennifer's other assets are already in her Trust. The probate will only be used to transfer the home into the Trust. Henry can continue administering the other Trust assets while waiting for the probate proceedings to conclude.