Archive for the ‘Wills’ Category

Simple Wills that Make a Difference

Tuesday, January 22nd, 2013

 By Patrice A. Putman, Maine estate and elder law attorney

Most people have some sense of what they want to happen with their “estates” (real estate, savings, cars and the “stuff” in their homes) if they die any time soon. If they have minor children, they know who they want (and, just as importantly, don’t want) to raise their kids. But then they are hesitant to call a lawyer and put their wishes in writing. Why?

Lawyers can be intimidating. When we see commercials about lawyers on TV they invariably use deep, intimidating voices and sometimes even flash fists and baseball bats. In fact, most lawyers are nice people who work hard to meet your needs. Many donate a great deal of their time to charities that they care about and volunteer in their communities.

You are concerned about cost. Having a Will written well and executed properly costs money – but probably not as much as you fear. At our office, a simple Will with a testamentary trust for the kids (a trust that is created only upon one’s death) is usually done for a flat fee, which we quote you at the end of a first meeting. This fee includes the initial meeting to gather all the necessary information and to understand your wishes. This is also when we will tell you about any unintended consequences associated with your wishes so that you can be fully informed about your choices. We then draft the Will, send you the draft, go over any questions or concerns with you, make any changes needed, and prepare a final document. The basic fee also includes a final meeting where any last questions are answered and any final changes are made. The Will is then signed, witnessed, and notarized. Copies are made and instructions (on what to do with the Will and the copies) are given.

You haven’t decided what to do. Decisions about what to do with your stuff or who to name to take care of your kids or to serve as Personal Representative (executor) are really hard decisions. We can help you think these things through. Sometimes you need more information and sometimes you need more options. Lawyers are trained to provide you with both.

If you don’t have a Will, state law determines what happens to your real estate, savings and other assets, a probate judge will decide who the best person is to raise your children. A simple will ensures that these things are handled they way you want.

The information provided in this post is for educational purposes only.   It describes the law in effect at the time the materials were written.  This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.

Leaving your “stuff” to people in your last will

Friday, January 6th, 2012

by Sally M. Wagley, Maine estate planning and elder law attorney

 

A concern that older people often bring to estate planning and elder law attorneys is how they can make sure that, at their deaths, the right people receive treasured heirlooms and other items.  These items include jewelry, antiques, firearms, tools, musical instruments, art work, knick-knacks, and the like.  Lawyers refer to this “stuff” as “tangible personal property.”  

 

It is not necessary to list things in the last will and testament prepared by your estate planning lawyer.  Instead, you can list these things in a separate writing, which your will refers to.  This separate writing can be in your own handwriting or typed.  What’s important is that it be signed by you and dated.

 

This list can be dated before or after the will prepared by your lawyer – it doesn’t matter.  You can change it time and time again, without going back to your estate planning lawyer to get your will changed.   The best place to keep this list is together with your will.   

 

Some people, instead of preparing this list, go around their homes and put post-it notes on things, naming the person to receive each item.  This will work out fine as long as your family agrees about who gets what.  However, if they don’t agree, there is no way to make sure that these things will go to the right people.  This can cause problems within your family and could even require a judge of the Maine probate court to resolve the issue.   Therefore, it is best to put your wishes in writing.

Using a Revocable Living Trust to Avoid Probate

Tuesday, December 28th, 2010

“Probate” – a word that creates fear and dread in the hearts of many. (For more information on what “probate” is, see my previous blog, “What is Probate?”)  But the truth is:  While the probate process in some other states is complex, time consuming and expensive, Maine has a streamlined probate process which for most people is relatively fast and is no more expensive than alternatives to probate.

 Reasons to avoid probate.  Nevertheless, in some instances, it can make sense to make arrangements to avoid probate.  This is true if: 

  • You have real estate outside of Maine; or
  • You have concerns about privacy and want to keep the details of your estate plan private.

 Ways to avoid probate. A number of simple ways can be used to avoid probate, such as: 

  • Putting real estate, bank accounts and investment accounts in joint names;
  • Designating beneficiaries on investment accounts, retirement plans, annuities and life insurance; 
  • Using “transfer on death” designations (“TOD” or “POD”) on accounts.

 Using a Revocable Living Trust to avoid probate. A “revocable living trust” may also be part of a plan to avoid probate.   This is done as follows:   A lawyer writes up a trust document.   Under this document, you name yourself as trustee. This means that during your life, and for as long as you are mentally competent, you remain in control of your assets.  You are able to add assets to or remove assets from the trust, spend money from it, change the terms of the trust, or revoke the trust altogether. You also name a “successor trustee”:  a trusted person (such as a family member or bank) to take charge of the assets when you die, or possibly sooner, if you become mentally incompetent.  When you die, the successor trustee pays bills and then distributes money and property according to the directions in the trust document, to the people you name in the document and in the amounts directed by you.  This can all be done without anyone having to file papers in the probate court. This preserves your privacy.  And if you have real estate outside of Maine, it avoids the necessity of filing for probate in another state, which can indeed be expensive.

 When considering whether to have a trust of this type prepared, be aware that the fees will be higher than if you go with a simple will.  This is because, in addition to the drafting of the trust document, deeds must be prepared, transferring your home and other real estate to the trust. Your bank and investment accounts will also need to be transferred to the trust, and beneficiaries will need to be changed on your retirement plans and life insurance.    This will all require more time on the part of your attorney, for which you should expect to be billed. 

(This blog is by attorney Sally M. Wagley, a Maine elder law attorney with the firm of Levey & Wagley, P.A., in Winthrop, Maine.  The information provided on this website is for informational and educational purposes only.   This information should not be construed as rendering legal advice or offering an answer to a specific legal problem.)

 


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