Category: Will

House model on a last will and testament document.

What to do when a Will is lost?

Posted by Susan B. Geffen on

What happens when a Will is lost? It is easy to misplace things. While we typically misplace our keys or our phones, or items that we use on a regular basis, it is also common to misplace critical legal documents such as a will. This usually happens if the decedent executed a will long before their death and never told anyone where they stored it. As time went on, their homes became more cluttered and disorganized and when the time came to take care of their estate, their loved ones simply cannot find any documentation.

Alternatively, perhaps there was a move and the document got lost in the shuffle. Many times older adults have to move from their homes and it can be quite hectic. On rare occasions a disgruntled child may steal it if they know that they have been disinherited.

If a will is lost, the first step is to search for a copy of the will. Check with the deceased person’s lawyer or financial advisor, as they may have a copy of the will. It is also worth checking with family members or other close associates who may have been aware of the existence of the will.

If a copy of the will cannot be found, the next step is to check with the local probate court to see if the will was filed with the court. If the will was filed, the court should have a copy of it.

If no copy of the will can be found, the estate will likely need to be settled through the rules of intestacy, which means the state’s laws will determine how the deceased person’s assets are distributed.

If the will can’t be found that doesn’t mean that the decedent’s wishes won’t be honored as long as someone has a copy of the will as there is a procedure to probate a lost will that is quite effective. Unfortunately, while effective, it can be a complicated and difficult process as you must prove that the decedent did not intend to revoke the will by submitting a declaration of the circumstances along with the copy of the will.

If the will is lost and there is no copy the estate will pass to the heirs which may have unintended consequences.

In order to avoid this situation, it is important to keep the original copy of the will in a safe and secure place, and to let family members and other close associates know where the will is located. It may also be helpful to provide a copy of the will to the executor of the estate, so they are aware of the deceased person’s wishes in case the original is lost or damaged.

What is the lesson? Keep your will secure in a safe place and tell a trustworthy individual where it is. I do not recommend putting it into a safe deposit box unless the individual who will need to present it to the court can easily access the box. Also, in this technological age, make sure to scan the document and email it to a trusted individual or a reliable adult child and ask your attorney to keep it stored electronically so that if the original is lost, a copy can be lodged with the court.

Living Will Declaration - Living Trust Will & Elder Law Attorney

What Happens If You Die Without a Will?

Posted by Joel on

We all know we are supposed to do estate planning, but not all of us get around to it. So what happens if you don’t have a will when you die? Your estate will be distributed according to state laws, which may or may not be the way you want it to be distributed.

Dying without a will is called dying “intestate.” Each state has laws that determine what will happen to your estate if you don’t have a will. If you are married, most states award one-third to one-half of your estate to your spouse, with the rest divided among your children or, if you don’t have children, to other living relatives such as your parents or siblings. If you are single, most states provide that your estate will go to your children or to other living relatives if you don’t have children. If you have absolutely no living relatives, then your estate will go to the state.

Note that any jointly held assets, such as bank accounts or houses, will go directly to the co-owner. In addition any life insurance policies or retirement accounts will go directly to the beneficiary designated on the account. And if you have a trust, any assets in the trust will go to the beneficiary designated in the trust.

One purpose of a will is to name a guardian for your young children; if you do not have a will, the court will determine who will act as guardian. The court will also appoint the person who will administer your estate. In addition, if you are unmarried, but have a partner, your partner will not inherit anything from your estate without a will naming him or her as a beneficiary.

The best way to ensure your estate is distributed the way you want it, is to plan your estate with a will and/or a trust. Contact your attorney to start planning.

Trust & Will Attorney | Elder Law Lawyer

What To Do When a Loved One Passes Away

Posted by Joel on

Whether your spouse has just passed away or you have lost your mom or dad, the emotional trauma of losing a loved one often comes with a bewildering array of financial and legal issues demanding attention. It can be difficult enough for family members to handle the emotional trauma of a death, let alone taking the steps necessary to get these matters in order.

If you are the executor or representative of the will, you first should secure the tangible personal property, meaning anything you can touch such as silverware, dishes, furniture or artwork. Then, take your time while bills need to be paid. They can wait a week or two without any real repercussions. It is more important that you and your family have time to grieve.

When you are ready, you should meet with an attorney to review the steps necessary to administer the will. While the exact rules of estate planning differ from state to state, the key actions include:

  • File the will and petition in probate court in order to be appointed executor.
  • Collect the assets. This means that you need to find out about everything the deceased owned and file a list of inventory with the court.
  • Pay the bills and taxes. If an estate tax return is due, it must be filed within nine months of the date of death.
  • Distribute property to the heirs. Generally, executors do not pay out all of the estate assets until the period for creditors to make claims runs out which can be as long as a year.
  • Finally, you must file an account with the court listing any income to the estate since the date of death and all expenses and estate distributions.

While some of these steps can be avoided through trusts or joint ownership arrangements, whoever is left in charge still has to pay all debts, file tax returns and distribute the property to the rightful heirs.

Paying off debts - Living Trust Will & Elder Law Attorney

Use Your Will to Dictate How to Pay Your Debts

Posted by Joel on

The main purpose of a will is to direct where your assets will go after you die, but it can also be used to instruct your heirs how to pay your debts. While generally heirs cannot inherit debt, debt can reduce what they receive. Spelling out how debt should be paid can help your heirs.

If someone dies with outstanding debt, the executor is responsible for making sure those debts are paid. This may require selling assets that you would like to leave to specific heirs. There are two types of debts you might leave behind:

  • Secured debt is debt that is attached to a piece of property or an asset, such as a car loan or a mortgage.
  • Unsecured debt is any debt that isn’t backed by an underlying asset, such as credit card debt or medical bills.

When you leave an asset that has debt attached to it to your heirs, the debt stays on the property. Your heirs can either continue to pay on the debt or sell the property to pay off the debt. If you believe this would cause a burden for your heirs, you can leave them assets in your will specifically designated to pay off the debt.

With unsecured debt, although your heirs will not have to pay off the debt personally, the executor will have to pay the debt using estate assets. You can specify in your will which assets to use to pay these debts. For example, suppose you have a valuable collectible that you want one of your heirs to have. You can specify that the executor use assets in your bank account to pay any debts before selling the collectible. And if you want to leave liquid assets, like a bank account, CD, or stocks to an heir, you should designate in your will what you would like your executor to use instead to satisfy debts.

Not everyone needs to spell out how to pay debt in a will. If your debt is negligible or your entire estate is going to just one or two people, it may not be necessary. Contact your attorney to come up with a plan for handling your debts.