Why You Want To Prevent Probate

Planning for the guardianship of your friends and family in the occurrence of your death is one of the most personal and imperative tasks you will take on during your life. Trying to avoid the subject will only worsen the situation for your family while they are managing their loss. The lack of a comprehensive estate plan could cause a tremendous amount of stress and financial hardship for those you love most. It is irresponsible to go through life without an estate plan in place, especially since one can be created for you at a low cost and with very minimal effort and time.

Ideally, an estate plan should allow you to control your property while you are alive and healthy but allow you to plan for your loved ones in the case that you become disabled or die. Should you die, your estate plan should carry out your wishes and give what you want, to whom you want, when you want, and in the manner of you are choosing. You can control your assets long after you are gone.

Some people will tell you that probate is not as bad as it sounds. Those people are probably probate attorneys. The fact is, if you have over $75,000 of total assets, you should avoid probate at all costs. Probate is the Court-supervised process of gathering up the assets of a deceased person (called the “decedent”), paying the decedent’s final bills, and then distributing the decedent’s remaining assets in accordance with the decedent’s will (if they had one).

Probate is necessary when the decedent has left assets titled in his or her sole name. These assets may include houses, cars, bank accounts, and even life insurance policies or retirement funds. Many people believe that having a will avoids probate. Probate will be required if the decedent has not left a will and some states provide a “will” for those who chose not to make one through the intestacy statutes.

Hire a probate attorney and make sure the firm is specialized in the will and probate process.

Content Provided By: http://www.bassilaw.com/aop/San-Francisco-probate/


Law Changes Regarding Making A Will

Look into most UK laws and you will find origins dating back to Roman times. They may well have invaded our country but they bought with them many benefits, being way ahead of their times in matters of order and rights.

They can be held pretty much responsible for many laws governing making a will also. Many countries had no propensity to enforce where a person’s belongings went to on their death and if today’s standards are anything to go by, this could have led to many family feuds.

Many laws also came from Ancient Greece regarding making a will, although various parts of the country had their own take on it. Most areas under Roman jurisdiction or Greek would specify that when making a will, the family of the deceased should inherit everything. This was to ensure the continuation of that family.

Some local rulers in Greece agreed that greater ties could be made between friends rather than family and would allow considerations for this when their citizens were making a will. No women or adoptees were allowed to make wills and slaves or foreigners possessions would be seized upon death for public use.

To be of sound mind when making a will and to be under no duress were important rules that all law makers have kept when will writing and that still stand today. It would seem Ancient Greeks and Romans put a lot more store by the influence a woman could have over her husband and any cajoling or encouragement that might influence his decisions would make the will void.

The Romans considered making a will to be their moral duty. If they wished to disinherit a child it had to be for a good, provable reason and they had to leave them a minor monetary token to show their disproval. To die without leaving a will brought shame on the deceased and their family.

If a person is left out of a will entirely these days it does not show bad morals, just the will makers intention to disinherit. Romans could not contest part of a will like we can today. The will should stand or fall entirely, whereas now parts of a will can be upheld while others can be argued.

The effects of Christianity on making a will were quite profound. They instilled a duty to bequeath a certain proportion of belongings or money to the Church. Priests overtook law makers as witnesses to wills and they were often kept in churches.

This, in part, went a long way to making churches rich and, ultimately, to them being poor when this was no longer a requirement.

Trends regarding making a will had altered in mainland Britain by the 1600’s. Girls of 12 and boys of 14 were now allowed to make wills leaving their personal effects. These changes were probably due to the fact that people were marrying at a much younger age and also dying at a very young age.

Will making has always been seen as a very serious business. The Larceny Act of 1861 shows that the crime of stealing, damaging or concealing a will was punishable by penal servitude for the rest of the criminal’s life. Forgery of a will also came with the same punishment, although this had been reduced from the death penalty.

Since 1897 when the last changes to will making laws were made governing land transfer were introduced, there have been no major alterations. However, I am very pleased to say that the ancient rule of women only being allowed to make a will with their husband’s permission has long been abolished.

Legal expert Catherine Harvey looks at the laws governing making a will and how they have changed over the years. To find out more please visit http://www.willdrafters.com/

Mistakes Made When Writing A Will

Will making can be a daunting process and is something that people only tend to do once in their lifetime which means they aren’t very familiar with the process. As a result of this mistakes can often happen which is why it is best to seek help from professionals who can assist you whenever needed.

Some of the most common mistakes that occur when will making are as follows. Some people are not aware of the formal requirements that are required in order to make the will legally valid. It is extremely important that this is investigated because if it is not valid there are likely to be problems when it comes to distributing your money and possessions. It may even be put into the hands of the State which means that any relative may be able to claim a stake in your fortune.

When will making, a lot of people forget to take into account all of the money and property that they have. This is easily done if you have an investment somewhere that you haven’t touched in years or something may have simply slipped your mind. Again, if you have property or money that hasn’t been mentioned in your will it could end up going to someone you didn’t want to have it.

When it comes to will making it is common for people to make changes and alterations to their will. This normally happens with people who make their will at a young age or get divorced. However, the amendments must be signed and witnessed otherwise they are invalid and the new changes will not be honoured.

There are rules relating to will making which means that if someone feels they haven’t been adequately provided for they can make a claim on the estate. As a result of this provisions in the will could be overturned and they may end up getting something. Things like this are not common knowledge which is why so many people seek the advice of professionals when it comes to will making.

Will making companies and solicitors know everything about wills and how to ensure that they are legally valid. It is strongly advisable to use one or even both to make sure that your will is saying what you want it to and that your money and possessions are going to go to the correct people. As well as this you can be assured that your will, money and possessions are going to be in safe hands.

Affinity will making is one of the leading firms of independent Will writers in the United Kingdom with over 100 years collective experience, specialising in Will drafting, Trusts, Estate Planning and Probate.

How To Make A Proper Will

Will making is an important requirement regardless of how old you are or how much you own. Without it all of your possessions may be distributed to people that you don’t want them to and the ones you love could be left with very little.

There are certain requirements when it comes to will making and without them it may be invalid. The person who is making the will must be aged 18 or older and must be in writing. Once it has been made it must be signed by the person making the will in the presence of two witnesses.

The two witnesses must also sign the will in the presence of the person making the will after they have signed it. When will making think carefully who the chosen witnesses are as them or their partners cannot benefit from the will. For example, if leaving possessions to family or friends they cannot be a witness when signing the will.

Another reason why will making is important at a young age is because the person making it must be of sound mind. They must be fully aware of the nature of the document and who and what people will be inheriting. If it is hard to prove that the person making the will is in a normal mental state it is likely to cause problems and it may be difficult to find someone who will construct the will.

As well as this will making must be done voluntarily and without any pressure from anyone else. After all it is the will maker’s money and their wishes so they should be respected by all of those around them.

Once the will making is complete it is important to keep it in a safe place together with any other relevant documents. Some people feel safer keeping it at home with them whereas others choose to keep it at a bank, with a solicitor or at the Principal Registry of the Family Division of the High Court.

Although will making is something that people put to the back of their minds it is an important process that should be completed as soon as possible. It can be amended to benefit new or different people and possessions can also be added or taken away. Once is has been done it can be forgotten about and should something happen it is guaranteed that only the people you want to inherit things will.

Affinity will making is one of the leading firms of independent Will writers in the United Kingdom with over 100 years collective experience, specializing in Will drafting, Trusts, Estate Planning and Probate.

Living Trust Confusion

Confused about living trusts? If so, you are not alone. A living trust is a legal entity normally created to hold assets in your lifetime and distribute them after your death. [A living trust has nothing to do with a living will. A living will is a document that states your desires regarding use of artificial means or heroic measures if you become disabled.]

The internet is littered with so-called “experts” loudly proclaiming their opinions about living trusts.

Some “experts” say living trusts are the best thing since sliced bread. Others, say living trusts are worthless and their benefits a hoax.

The truth is much more complicated.

Living trusts can do great things for some people and nothing for others. It just depends on your situation.

It is true that a living trust can, among other things, be used to avoid probate and save estate taxes. It also can help provide privacy, flexibility and even avoid a guardianship proceeding if you become incapacitated.

One of the biggest benefits of a living trust is that it allows you to begin to put your estate plan into action while still alive. You can then get some insight into how your estate plan will work and make adjustments if necessary.

However, there are other ways to achieve these objectives that might be easier and cheaper for you. Also, it can be difficult and sometimes costly to properly prepare and fund a living trust.

So, the truth is that a living trust offers advantages and disadvantages.

Generally speaking, the larger and more complex your estate, the more a living trust will likely benefit you. Certainly if you have assets over $1,000,000 you should seriously consider having a living trust drafted as part of your estate plan. The bottom line is to figure out if you should get a living trust you need to either talk to an experienced estate planning attorney about your particular situation or you need to invest some time learning about the advantages and disadvantages of living trusts.

To find out more, visit Free Living Trust Information. Click here for information about the Advantages of a Living Trust and Disadvantages of a Living Trust.

Mo Johnson is an attorney and a long time SEC sports fan. He is publisher of http://www.secsportsfan.com and Free Living Trust Information.

Wills Essentials

Many people today make their own wills and this approach is fraught with danger. A will is a written declaration that sets out how a person wants their assets to be distributed to their beneficiaries following death. It is one of the most important documents that anyone will ever execute at any time in their life as it disposes of their entire estate which represents the sum total of all assets at a particular point in time namely, the date of death. Making a will can be and often is a highly complex task which requires the services of an accomplished draftsman namely a lawyer. Do-it-Yourself wills are dangerous as they lack the sophistication necessary to properly reflect the true intention of the testator or testatrix and often fail such that the intended beneficiaries do not receive the gift/s referred to in the will. Cheap wills are exactly that – you only get what you pay for. How can one size fit all? Everyone over the age of 18 should have a will drafted by a lawyer to ensure it is valid so your estate can be distributed as quickly and as cheaply as possible in the intended manner. On death, without a will, your estate is frozen and distribution delayed except for the payment of funeral expenses. With all wills even the simplest ones there are a number of formal requirements which have to be followed and if not considerable expense may be incurred by the estate to deal with these matters. Litigation is expensive and the amount to be spent with a solicitor to obtain a valid will pales into insignificance against the cost of litigation which could range from approximately $40,000 to $250,000 in the ordinary course. Of course considerable costs will also be incurred where there is either a partial or total failure of a will.

Many people often put aside the necessity to obtain a well drafted will believing that it is unimportant and it is something that can be attended to later on. Unfortunately when death comes it rarely heralds its approach particularly so in today’s sophisticated society where risks to the person are fair more significant than they have ever been in the past. Why not make a valid will now to avoid uncertainty and the costs associated with either not making a will or drafting something which fails to properly express your true intentions. We recommend to all who are trying to make provision for the future they should execute the following documentation:

1 A property drafted will; 2 An enduring power of attorney which covers all financial decisions; 3 An enduring guardian which appoints a family member or 4 associate to make all relevant medical decisions; and 5 A death benefit nomination settling the superannuation fund beneficiaries.

Contested Wills ~ Get Proper Advice!

It should be noted that where a valid will has been made it us unlikely that it will be overturned. Most of the problems involving contested wills depend upon whether the document which purports to be the last will and testament of the deceased is in fact valid. Essentially the will can be attacked on the following bases:

1 it was not the last will and testament of the deceased; 2 it does not constitute a valid will as the requisite formalities have not been followed; 3 the deceased lacked the necessary mental capacity to make a will; 4 it was altered after it was signed; 5 it was procured by undue influence or fraud; or 6 it was revoked.

In all such cases use the services of a competent solicitor to obtain proper advice.

The Executor ~ Seek Legal Advice!

As matters would have it sometimes there is a change of heart after a person has been nominated as the executor of an estate by a person in their will following the death of the testator/testatrix. This does not mean that the court cannot be approached and that some other person cannot be appointed to this position. The role of an executor can be an onerous one as they are charged with the responsibility to administer the financial assets left by the deceased and where they have breached this position of trust and have acted inappropriately they can be sued. The executor is expected to administer the estate efficiently and competently in accordance with the terms of the will. With many estates this can be an onerous and time consuming process which may require expert legal assistance so that the executor can meet their legal obligations. An executor must act with all due despatch particularly in times of a falling market to preserve the value of the estate. The executor who stands in the shoes of the deceased may be called to defend the terms of the will against dissatisfied family members as well as persons who consider that the deceased was responsible for their welfare under the Family Provisions Act 1982.

The Executor should move as soon as possible to obtain probate to reduce the contingent risks associated with this position to determine the validity of the will, their position as executor and allows claims against the estate to be settled and assets distributed to beneficiaries quickly. Why take the risk – be better informed and advised – use a competent solicitor.

Rectification or Intestacy ~ Don’t make a mistake!

Wills which are often drafted by persons other than lawyers are often unclear which means that the executor or a party interested in the estate may have to apply to the court to determine what the deceased’s true intention/s were. Sometimes when wills are drafted by the uninitiated they contain mistakes, and although some can be rectified there are others which cannot. When this occurs the will may fail as there may be an intestacy which will totally circumvent what the deceased’s true intentions were, as persons will be introduced as beneficiaries who were never in their reasonable contemplation of being so, when the deceased was alive. All questions involving interpretation of a will are dealt with by the equity division of the Supreme Court of NSW which is an extremely expensive way of having one’s affairs dealt with after death because the law is either unclear or uncertain as to any of a number of matters which could have been properly addressed had an accomplished lawyer been engaged to attend to them during the course of the deceased’s life

Estate Disputes ~ Make proper provision!

Apart from the matters referred to above a will may be attacked under the Family Provisions Act 1982 NSW to remedy a situation where dependents believe they have not been provided for. The Act enables an eligible person to apply for a share or a greater share of an estate, however they must establish need and prove that the testator did not make adequate provision for them in the estate for their maintenance, advancement or education in life. Basically the eligible person is normally concerned with questions of the reasonableness of provision. Eligible persons are:

1 The deceased’s spouse at the date of death; 2 Someone with whom the deceased was living in a domestic relationship; 3 A child of the deceased person; 4 A former spouse of the deceased person; 5 A dependent of the deceased, which may include persons related or unrelated to the deceased, including foster children and persons in a same-sex relationship.

Where an order of the court is being sought to change a will, the court will address whether:

The eligible person has been left without adequate provision for their proper maintenance, education and advancement in life; and If yes, what provision if any should have been made out of the estate to assist that person? Technically all claims by an eligible person under the Family Provisions Act 1982 should be made within 18 months of the date of death of the deceased person. Exception is only available with leave of the court in very limited circumstances. Realistically all claims should be made well within time to overcome the possibility of the estate having been distributed otherwise the costs to deal with this will be substantial.


Obviously there is a lot to think about whether you be testator or testatrix, executor, beneficiary or a person whom the deceased has overlooked where they were responsible for your welfare. Irrespective prudence dictates that you obtain competent, independent, legal advice to guide you to your desired outcome. The costs of using a competent solicitor whether to draft a will, to obtain advice as executor, to avoid mistakes, to challenge it or to seek provision under it are small compared to the risks which you run by going it alone. In most cases costs are recoverable from the estate on determination

Frank Egan is the Chief Executive Officer of LAC Wills Lawyers Sydney and has over 27 years of experience as a lawyer.

Living Will And Durable Power Of Attorney For Health Care

A Living Will is a legal document addressing only deathbed considerations; a client unilaterally declares his/her desire that life-prolonging measures be discontinued when there is no hope of ultimate recovery.

On the other hand, people use a Durable Power of Attorney for Health Care to appoint someone to make all healthcare decisions, limited by certain elections regarding deathbed issues.

The client must be at least 18 years old and mentally competent at the time he/she executes either document but incompetent to participate in the decision-making process when either is implemented. It is important to remember that both documents are only applicable if the client is incompetent.

Under the a Living Will, a client declares that if he/she is certified to have an incurable, terminal injury/illness and/or to be permanently unconscious by two examining physicians (including the client’s attending physician), that artificial life-support systems be withheld or disconnected. The client may also elect to discontinue artificial nutrition and hydration (intravenous feeding) by so designating on the form. (Find more information at: legalhelper.net/living-will.aspx)

Under the Health Care Power of Attorney, the client makes three separate and independent elections authorizing the agent:

1. To direct disconnection of artificial life-support systems in the event of terminal illness;

2. To direct disconnection of artificial life-support systems in the event of irreversible coma; and

3. To direct discontinuation of artificial nutrition and hydration.

In addition, the Health Care Power of Attorney form provides a space for the client to set forth any specific medical, religious or other desires concerning his/her health care. The client may also use this section as a backup source for organ donation. (Find more information at: legalhelper.net/power-of-attorney.aspx)

Both documents are signed in front of two witnesses and a notary public or a justice of the peace who acknowledges the client’s signature. The witnesses to a Living Will are sworn by the notary public/justice of the peace and indicate that the client is at least 18 years of age and signed the instrument as a free and voluntary act.

The Living Will witnesses may not be the client’s spouse, attending physician, heirs-at-law or person with claims against the client’s estate.

The Health Care Power of Attorney witnesses may not be the designated agent, the client, spouse or heir or person entitled to any portion of the client’s estate upon death under Will, Trust or operation of law.

People are frequently confused as to why both a Living Will and Health Care Power of Attorney are necessary or appropriate. The Living Will is helpful as a backup document: In the event that the client enters an irreversible coma and the health care agents designated in the Health Care Power of Attorney are deceased or unloadable, the Living Will sets forth the desires of the client concerning his/her death-bed treatment which may be followed by attending physicians. The law provides that to the extent that a Durable Power of Attorney conflicts with a Living Will, the Health Care Power of Attorney controls. Copies of both the Durable Power of Attorney for Health Care and the Living Will are forwarded to the client’s primary care physician for inclusion in medical records.

Both documents are revocable through normal revocation procedures.

Note that LegalHelper.net provides an easy-to-use, quick, and economical online method for creating completed legal documents for any occasions.

James Wood is a free-lance writer on family issues; his main goal is to help people during their complicated period of life, to find a right legal solution in regards to family relationship.
Website: LegalHelper.net (http://www.legalhelper.net/power-of-attorney.aspx).

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