I have a Last Will and Testament from forty (40) years ago. Should I update it?

An individual’s original estate planning purposes may be different today than many years ago. For instance, many estate planning attorneys in years past drafted estate plans in order for their clients to maximize estate tax savings. Due to legislation, estate tax planning is not usually a primary focus of estate planners.

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If something happened to me, someone will need to take care of my children. How do I name a guardian for my children?

This question is the main reason why young married couples enter the office of an estate planning attorney. The greatest concern for these clients is often not related to the efficient distribution of their wealth to the next generation. Rather, the greatest concern for young married couples is often the question of whom will care for their children if something traumatic should prevent both parents from caring for them. In fact, when a married couple has their first child, such is the opportune time to their first will.

It is critical that parents of minor children name an individual to serve as Guardian of their children in their last will and testaments. When both parents have deceased or are unable to care for their children, a probate court will look to the parents’ last will and testament in deciding whom shall serve as Guardian. Without the parents’ input through their last will and testament, the probate court may only have the opinion of self-interested family and friends to consider the question. Obviously, the most important opinion is that of the parents. Clients with young children do not want to leave the question up to anybody else than themselves.

I have been married more than once. How should I plan the inheritance for my spouse, children and stepchildren?

Sometimes clients desire that stepchildren be treated no differently van the clients biological children. Other clients sometimes want only their children to receive their property. Thus, to answer this question it is necessary for the estate planning attorney to understand the family dynamics. Further, it is important for the client to understand the legal presumptions regarding stepchildren. While this blog post cannot address particular family dynamics, it can address the treatment of second marriages and stepchildren according to Indiana law.

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What is so bad about probate?

Have you heard horror stories about a probate administration gone wrong? Or have you only heard rumors that you should try to avoid probate? The truth is that many probate administrations are not a big deal. But there are some detractions to going through a probate administration. Here are a few:

1.     PUBLIC: A probate administration is a public court case. This means that the public at large will have access to many if not all of the court’s records for the estate. In particular, the public nature in the estate administration requires that the Last Will and Testament of the decedent be made public. For those individuals who are very private in their dealings with others, it is an unwelcome prospect that their entire estate might be made known to all who inquire.

2.     CREDITORS: An individual’s creditors have a right to be notified regarding the opening of an individual’s probate estate. From the time that the creditors are put on notice of the opening of the estate administration, the creditors have three (3) months within which to file a claim against the estate. Once a creditor files a claim against the estate and that claim is valid, then the creditor will be paid by the estate prior to final distribution to beneficiaries.

3.     WILL CONTESTS: Of course, it's always possible that family members and any other beneficiaries will challenge the validity of the individual’s Last Will and Testament. When this occurs, the attorney fees increase and each beneficiary’s share decreases. Ultimately, the beneficiaries lose out. Because the will contest is in the public forum, anybody can come and contest the will. If this is a concern for a client, it might be advisable to set up a trust so nobody has a chance to contest the will.

4.     ATTORNEY FEES: Related to point #3 is the expense of attorney fees. A simple estate administration will cost some money. But if there are any complexities to the estate administration, then the cost can rise fairly dramatically, especially if there are beneficiaries who are fighting each other within the estate administration.

These are a few reasons why probate has a bad reputation. Certainly, an estate administration in some instances is unavoidable if the proper estate planning hasn’t been put into place. However, when an individual desires to avoid probate, it is possible so long as he/she does the estate planning in advance.