We are here to help with
Wills And Estates
About Wills and
the probate process
Before you see me about writing a will, or as a follow up to a will you have already written, I have prepared some information that you may find helpful. Attached to these questions and answers you will find a checklist that may be of assistance in collecting information needed to properly assess your situation.
General Information about wills and the probate process
What is a will?
A will is the instrument by which a person declares his intentions concerning the disposition of property to take effect after death. There is no inherent right to make a will; both the right to dispose of property by will and the requirements for the exercise of that right are controlled by state law. This makes the drafting of the will a very complex and precise process. Basically, any person over the age of eighteen (18) years who is of sound mind can make a will. Generally, a sound mind is found to exist if a person understands that he is making a will, comprehends the extent of his property and the nature of his disposition of it and knows the natural objects of his bounty (his heirs). A will must be executed in accordance with certain legal requirements or it will be refused admission into Court. Generally speaking, a will must be in writing, signed by the person making it and witnessed.
Does Everyone Need a will?
No. A will is an elective legal process. If you choose not to write a will, the State has written one for you. The disposition of property upon death is strictly controlled by statute.
does my estate have to be probated simply because i have a written will?
Probate, generally speaking, is the legal process required to wrap up a person’s affairs after they have died. Whether or not you have a will makes no difference. All estates are subject to some form of probate in a very general sense. As a general rule, your estate will face the same probate process whether or not your have a will. No one can ever avoid probate but a well drafted will and a reasonable estate plan may make the process easier.
What information do i need to write a will?
Over the years I have tried to come up with a variety of questions for people to ask themselves before we meet. Most of the time, these questions have just created confusion. Therefore, I find it best to initially discuss your wishes in general terms. The operative word in a will is W-I-L-L itself. This refers to the free will that all of us have to dispose of our assets. As a consequence, any legal disposition of your property can be reduced to writing in a will. Some common basic items to consider include:
A. Who do I want to get my estate at my death if I die leaving a spouse and children?
This is a very basic question, but is the most obvious one to be asked. Any distribution that the law recognizes is acceptable. Gifts can be made to charitable institutions. Specific items can be given to specific people. Your estate can be divided in some mathematical or proportional fashion among heirs without even specifically naming them. The list goes on. If you are married, most people leave their estate to their surviving spouse (then to children surviving in some fashion). But, your plan of distribution is only restricted by your needs and individual creativity.
B. If my spouse predeceases me, or if we die together in a common accident, who do I want to get my estate?
This is a question that must be answered by married couples since they logically give the bulk of their estate to the survivor. If you have children, most likely your children are your prime beneficiaries in this situation. Once again they can be given specific items or a proportional share of your estate. You should also make plans for grandchildren in the event that a child or children predecease you or your spouse. Therefore, when and if you focus your attention on your children, please make a decision as to whether or not you wish the grandchildren of a deceased child to get that child’s share in the event that a child predeceases you.
C. If minor children end up as beneficiaries to my estate, do I wish to choose a guardian and/or trustee?
In Indiana, a person cannot own property or make legal decisions prior to age eighteen (18). Therefore, if the possibility exists that the beneficiaries of your estate will be under that age you can designate a preferred guardian and trustee for those individuals. A guardian is most logically a natural person to whom you are related, although it can be anyone. Please check with the person prior to thinking of including them in this important capacity. If you choose to establish a trust for minor beneficiaries, any person or various financial institutions can serve as trustee. I recommend a corporate trustee (bank) since they are better able to invest the trust fund and are less likely to be influenced by family matters in making distributions to minors. Most area banks can serve in this capacity.
D. Who do I want to handle my estate?
You must designate a specific individual to handle your affairs once you have passed away. In Indiana, that person is called a personal representative. You may be more familiar with the term executor or executrix since these have historically been the designations give to such persons. When choosing a personal representative, keep in mind that this person will have to do a lot of leg work upon your death. Therefore, it is wise to have a local person. In addition, a person living outside the state has a legal difficulty qualifying. You may also wish to name a backup or contingent personal representative in the event that your primary selection is unable or unwilling to serve in that capacity.
If i write a will, can i be assured that it will be enforced?
Nothing is certain in life. However, a well-drafted will should withstand all attacks. Of course, it is always possible to contest a will and many books, plays and television shows have been written to promote the idea that a will is a fragile document. In reality, most attorneys handle few, if any, will contests during their legal careers.
will there be additional attorney fees and/or taxes to be paid by my estate because i have a written will?
Attorney fees and taxes are based upon the assets you accumulate during your lifetime. Seldom will the mere execution of a will have any adverse impact upon these expenses. If anything, a well-drafted will and estate plan can reduce both attorney fees and taxes.
can i disinherit persons who would otherwise inherit from me?
Yes. With the exception of a spouse, you can totally disinherit anyone who would otherwise inherit a portion of your estate. A will allows you this unique opportunity. Remember, the statutes in Indiana strictly define who will inherit your estate in the absence of a will.
can i write my own will?
You have probably seen advertisements in national publications and on television that imply that you can write your own will by purchasing a kit for a small sum of money. Any person can act as his own attorney. For that matter any person can also take out his or her own appendix if he or she has the knowledge to do it. Since a will is the most precise document that exists in the law today, it would be very unwise to attempt to write your own will, with or without the assistance of some kit sold to the general public. Each state’s laws vary so drastically that I cannot imagine how a general treatise can possibly direct you properly in the preparation and execution of a will. You need an attorney.
can i change my will?
Yes. Once again, the important word to remember is “will,” referring to your own free will. So long as you maintain the proper mental capacity you can change a will. This can be done in part by the execution of what is called a “codicil” or in full by the execution of a subsequent will or by their physical destruction. A will has no value in the law until your death. Therefore, prior to that time it is nothing more than a piece of paper.
if i'm married can i have a joint will with my spouse?
Yes. Joint wills are recognized in Indiana. However, I recommend that two (2) separate documents be prepared. A joint will has been interpreted by some cases in Indiana to be a contract with your spouse. This becomes important if and when your spouse passes away before you. Under these old cases, you may be prohibited from making changes in your will if your spouse predeceases you.
advanced health care directives
An increasingly important question in our society regards the use of life sustaining treatment when a person is no longer capable of making a decision concerning medical care. Indiana allows the execution of an Advanced Healthcare Directive where a person can give direction to both health care providers and family on to manage healthcare whether or not to use life sustaining treatment when they are otherwise unable to let their wishes be known.
prior to my death, is a power of attorney advisable should i become incapacitated?
Another instrument that is often considered when one prepares a basic estate plan is a power of attorney. A power of attorney allows you to appoint a person to handle your affairs during your lifetime when you are physically or mentally unable to do so. This document provides additional protection for those difficult times that some of us face. A power of attorney can be a durable instrument. Under existing Indiana law, a power of attorney can avoid the necessity for a guardianship in many cases if it is signed prior to your incapacity. Only death terminates the effectiveness of a power of attorney.
When the time comes it may be necessary to “probate” or file your will in court. We can guide your family through that process make sure your wishes are followed. Most estates can be settled without court supervision.
“This information is general to say the least and is intended to give you a little more information about the will writing process. I will be happy to answer any questions you might have at any time concerning the writing of wills or the probate of estates.”
Steven L. bohleber