One of the greatest gifts you can give to your family is to have your estate plan prepared. The reason for this is that it gives your family instructions, gives them authority, and provides certainty of your wishes. A typical estate plan can include various documents, not just a will. These might include a durable financial power of attorney, a healthcare power of attorney, a will, and a trust. Each estate plan is tailored to your specific needs and the size of your estate. An experienced estate planning attorney can ensure that you have everything in place and are utilizing the correct estate planning documents.
If you have a Will, it should do the following:
1. Designate and appoint an executor (Personal Representative in Arizona). The executor’s job is to manage the assets of the estate until distribution and then make the distribution to the beneficiaries.
2. Designate a guardian for your minor children. Your will is one place where you can outline your preference for who should care for your minor children if you pass away. If you have kids, preparing a will is one of the best things you can do to ensure that your wishes are carried out and that you are setting up a system for your children to receive money.
3. Distribute tangible personal property. Tangible personal property includes home furnishings, clothing, jewelry, artwork and vehicles and any other items that you can touch. It is common in a will to separate tangible personal property from other assets such as bank accounts or your home. In separating it from other types of property, we will utilize a list that you can add or subtract from at any time without the need to come back to the attorney to draft a codicil or change to your Will. This flexibility is an essential aspect of an estate plan and one of the key reasons for having your estate plan prepared by an attorney.
4. Distribute the remainder of the estate. A will is one of the only places to designate where your belongings go upon your death. All assets that are in your name, such as your home, your bank accounts, and your investment accounts, are part of your estate and are controlled by the will. If you do not have a will, the default law will apply without any of your input. But with a will, you can choose who receives your estate and in what percentage or amount.
Unfortunately, many families come into our office with this story:
Dad told me he had everything lined up for when he passed away. He said it would be very simple, and I would be able to get everything without needing to do anything. He also said that I won’t have to worry about my sister knowing about any of this.
If Dad only had a will, it won’t be as easy as the child thought. What most people don’t understand about a will, is that it simply outlines your wishes in a document. A will contains significant potential, but in and of itself, it doesn’t have any power. A will only gains power if it goes through probate. If you believe you have someone’s will and you are the person who is designated executor in the will, you can file it with the probate court. The court, in return, will give you a document that then gives you the authority to collect the assets of the estate and distribute it to the beneficiaries.
One of the reasons we have the probate court is to ensure that the correct will is filed, and the correct person is given the role of executor. Maybe you have a will but find out that a more recent will was prepared. The newer will “revokes” any other wills. The probate court can evaluate which will is the correct one to administer.
Another reason for the probate process is that anyone who is an heir or beneficiary of the person who passed away needs to be told about the probate. Either before the appointment or after the appointment, if you are an heir or beneficiary of an estate, you will receive a copy of the will and various other documents. This gives you a chance to object to the executor’s appointment or the will itself. Maybe you have a newer will and didn’t realize that a family member was proceeding with an older will.
There are many tools you can utilize that avoid probate. These include beneficiary designations, joint ownership, or a trust. But if a family member has passed away and you are trying to collect an asset but have been told that you need documents from the court, this means you will have to probate the will. Our firm is experienced in administering a probate. We will prepare the documents to get you appointed, send out the documents to heirs, beneficiaries, and creditors, help you collect and manage assets, and finally, prepare the distribution to beneficiaries. It is our goal to efficiently administer the estate and ensure that you follow the law and are protected as you act as executor. If you are an executor or recently had a family member pass away, call our office to set up a consultation with one of our experienced probate attorneys to evaluate how we can help you.