Who should have a Last Will and Testament?
The short answer is that everyone should have a Last Will and Testament. While all of us know that we will die one day, we do not expect it to happen today. In Tennessee, if you do not have a Will, then state law controls how your property is inherited.
Do I need a will?
Do you have minor children?
Do you own real estate?
Do you want your assets to go to the person you name?
If you answered yes to any of these questions, you need a will.
If you have children, make sure you provide for a guardian to take care of those children if something should happen to you.
If you own any real estate, make sure it is passed on to the person of your choosing.
If you have bank accounts, vehicles, or other property, your wishes will be followed as to who will receive these items.
The best reason to have a will is that your estate will typically be less expensive to take care of than an intestate estate (where there is no will).
Why is a properly executed Will so important?
(1) You specify by whom and when your property will be divided or inherited.
(2) What you have told someone, or even written down, is worthless legally unless it complies with the requirements for a Last Will and Testament.
(3) Expenses to your estate and beneficiaries can be greatly reduced by having a simple will that waives bond and probate formalities.
(4) It eliminates a lot of uncertainty and even disagreement by family members. Children do not always get along or agree on what is best or what to do.
(5) Younger parents can make provisions for the guardianship of minor children in the event both parents should die or be killed
How much does a Will cost?
Cost varies, depending on the complexity of the estate plan, but a basic Last Will and Testament and execution (signature and witnessing) can be as inexpensive as $150.00.
What if someone is sick or unable to come to the office?
We routinely will visit with a client in their home, the nursing home, or a hospital if that is needed. Typically, a will signing requires two witnesses and a notary public. If necessary, we will arrange to have the witnesses and notary available for the “housecall.”
What about using will forms that are available in stores or on the internet?
They may be fine for some people, but we do not recommend this practice. The form may be inadequate, or contain inadequate directions or instructions. Second, a good estate lawyer asks questions and gives advice and information along with preparing the form.
What about revocable living trusts and avoiding probate?
In recent years the practice of promoting and selling so-called “revocable living trusts” has become quite an extensive and lucrative practice. Legal services companies, financial advisors, and some lawyers aggressively advertise and promote these trusts. In our practice and experience, we have seen many instances of individuals and couples being victimized by these promoters and the trust packages they sell. A trust is certainly a valid and useful means of estate planning. However, the mass-marketed trust packages are dangerous and ill-advised. Do not purchase an estate plan from someone that conducts a seminar at a local hotel.
Can a will be contested?
Yes, a will can be contested for a variety of reasons. Grounds include: (1) that the testator (person making the will) lacked testamentary capacity (incompetence); (2) that the will results from undue influence by someone (usually a family member or caretaker upon whom the testator depended); and (3) lack of proper execution when it was signed.
The will contest is a type of lawsuit that must be initiated within certain timeframes. If you believe that you should consider contesting a will, you should contact an attorney immediately.