What are the most common questions about Estate Planning?


Who should have a Will?

Everyone over 18 should have a Will. The idea is to provide an orderly disposition of the estate, whatever size.

What if WE don't have a Will?

If you don't have a Will, then your property is divided up under the laws of Intestate Succession. Call us for an explanation.

What about Estate Taxes?

Generally, there are no Federal estate taxes if your estate is under $675,000 in 2001 and $1,000,000 in 2002. This amount is scheduled to increase in later years under current legislation. In some cases, a Trust can be drawn to reduce or minimize estate taxes. When we anticipate that an estate many incur taxes, we associate in a tax professional to be sure the client's estate plan gives maximum tax advantages.

What is Probate?

Probate is the Court-supervised administration of a decedent's affairs. It is not necessary, in most cases, if the decedent has a Trust in addition to a Will, or if the Estate is small and consists only of certain specified property. Call us for more specifics.

Do I need an attorney to do a Will?

No, but you should hire us to be sure it's done right. The do-it-yourself route or the use of a paralegal may be cheaper in the short run, but mistakes can be costly.

Where should I keep my Will?

Your Will and other important papers should have duplicate originals, one in a safety deposit box, and one at home. Give your executor and your beneficiaries copies.

When does my Will need to be updated?

Call us to update your Will as your life changes, such as a marriage, divorce, remarriage, death of a family member, or birth of a child or other relative.

Who should my executor be?

Pick an executor younger than you are. If there is substantial property, or conflict in the family, choose a neutral professional.

What about my funeral?

Your Will should include funeral directions and a provision to pay for the funeral. Your funeral plans are your choice. The important thing is to state what you want so there will be no confusion or dispute.

What other papers are important for my estate in addition to my Will?

You should have a Directive to Physician specifying your wishes as to extraordinary treatment. Some people want the doctors to do everything to keep them alive, but other people don't feel that way. What is important is not what you want, but to make it known! You should also have a Power of Attorney so that if you become incapacitated, a trusted relative or friend can make medical decisions and manage your finances.

Do I need a Trust?

Many small estates can avoid probate, but not all can. If your combined total or real and personal property in your estate will be over $100,000, you should have a Trust rather than a Will. A Trust allows that Estate to be administered without Court supervision in most cases. Trusts can be revocable, meaning you can alter or revoke it all together during your life.

What is a Testamentary Trust?

If you have minor children, you may wish to establish a Trust, which is funded out of your estate effective upon your death. The trustee you appoint will invest the funds until the children reach a specified age and pay them what is due at the proper time.

Who will care for my young children?

Generally, the remaining parent, if fit; will continue to care for your children. However, if you are widowed or your ex-spouse is not an appropriate parent, your Will should express a preference as to a guardian. The Court is not bound by your choice, but will usually honor it. In all cases, the Court places the best interests of the children first.

What about my pets?

Unfortunately, the law considers pets to be property rather than persons. Your options are to leave the pet in your Will or Trust to a designated person, and/or to establish a Trust for his or her care.

Should I disinherit relatives I don't like?

While the law permits you to leave your property to any person or entity of your choosing, Wills that disinherit close relatives invite litigation. We advise that you not disinherit anyone who would naturally be expected to receive your property, unless you want your estate to be eaten up in attorney fees. A Will is not a device to "get even" with your family. Be fair! Be compassionate! If you have children, divide your estate equally among them. If you do not have children, divide your estate among your closest relatives with whom you have had regular contact. We try to meet with the whole family to agree on the disposition of the Estate and get everyone to sign off on an agreement to avoid litigation.

Can a Court throw out my Will?

Yes, if you were mentally incapacitated at the time you made it, if you did not know the extent of your property or the persons who would naturally be expected to benefit for your estate, or if the will arose from insane delusions, duress, or undue influence. We represent both estates and contestants in Will Contests.

Am I responsible for a dead person's debts?

Yes, if there was no probate, but only to the extent you received property from the decedent as a result of the death of the decedent. Otherwise, children, or anyone else except a spouse, do not inherit the debts of a decedent. A widowed spouse may be liable for community debts to the extent of the community property, but not for separate property debts of the decedent. Assuming proper notices are published, a creditor must present a claim to the administrator, executor or trustee within four months of the issuance of letters or publication of a Notice to Creditors, or apply to present a late claim. In any event, a creditor must bring a lawsuit within one year after the date of death, or the creditor is out of luck. Please call us before you make any payments to anyone to whom the decedent owes money.