Importance of Writing a Will the Legal Way

Importance of Writing a Will the Legal Way

Importance of Writing a Will the Legal Way

While many people will know the importance of having a will in place, there are still an alarming number of people nationwide who do not have one in place, either because they see it as something that they will do when they get older, or because they can’t see the importance of writing one.

It is estimated that as many as over 90% of the people do not actually have a will in place, which can cause a number of different problems when they die. Here, we take a look at some of the most important reasons you need a will.

  • Protecting Your Own Wishes.

Should you die, without a valid will, you will have gone “intestate”. In these cases, your assets are distributed according to the Intestacy Rules, in a set order laid down by law. This order may not reflect your wishes.

The Intestacy Rules will decide where your money goes, which can be upsetting for those left behind, who see assets passed on perhaps to estranged family members and even former spouses who will have a claim if there is no will in place.

For those who have no relatives, it can be an even more worrying situation. In these cases, unless long lost relatives can be located, all assets pass to the government, when it could have been left to charities or very dear friends, if only they had been a will.

  • Protecting Your Family.

In certain cases, people write a will because they want to know their family will be looked after when they die. Nevertheless, this can get complicated when no will is actually left behind. For instance, if you have a partner, who you are not married to, even if you have been together for many years and where living together, they would have no legal right to your assets if you should die intestate. In most cases, this leaves people with nothing.

Even for those who are married or in civil partnerships, dying without leaving a will may mean that your spouse or civil partner does not inherit the whole of your estate. In these cases, the amount that a spouse will be entitled to will be restricted, and some money can even end up going to people that you feel are undeserving, leaving you your immediate family with less than they would have felt they were entitled to and less than you would have wanted to leave them.

Is Your Will Correct?

In a nutshell, it’s not just about having a will either. It needs to be both up to date and completely legal as well. This is why it’s important to have your will written by a solicitor with specific expertise in this field.

They have been many cases where people have written their own wills, and have ended up leaving behind a legal dispute that rages on for months or years. Making sure your will is updated regularly is important too. You don’t want to have an old will left behind that leaves a large chunk of your money to an ex-spouse, or does not comply with current regulations, as again, this could potentially leave your money and assets being distributed in ways that you would not have wished.

Probate without a Will.

When someone dies without a will, those left behind, must figure out how to transfer or distribute the deceased person’s property. This often requires going to probate court. Despite the negative publicity probate receives for being complicated and expensive. There are benefit to going through probate without a will.

First, let’s review some probate basics. When you die without a will, this is known as dying intestate. Each state has designed guidelines on how property and other assets will be distributed when a person dies intestate. These guidelines are known as state “intestate succession’ laws. These laws control how your estate is handled in probate court.

Benefit of Probate When There’s No Will.

Look around your home or apartment, then imagine what would happen if you were suddenly gone. You died and didn’t live a will. Who would clean your house and were would your belongings go? And if your heirs started fighting over who kept your dog?

Probate court provides a final decision to many unanswered legal questions that arise when you die without a will. So here’s why you may want to go to probate without a will.

  • Cut off creditor Claims: After someone close to you dies, the last thing you want is call from debt collectors. Depending on the laws of your state, beginning probate can reduce the time creditors can file claims to as few as three months.
  • Resolves Conflicting Claims to Property: Inheriting property doesn’t always bring out the best in people. Probate doesn’t guarantee heirs won’t litigate disputes over property. But intestate succession laws applied by the court to distribute property can give closure to some disputes. Generally your heirs including your surviving spouse, siblings, aunts, uncles, nieces, nephews and distant relatives. The order of who takes first in intestacy is governed by state law. When no relative can be found, the entire estate goes to the state.
  • Transfers Title: Unless real property is held in a trust or some form of joint ownership, it typically needs to go through probate to transfer the name on the title.

What’s the Role of the Court?

State courts typically contain a designated probate division, commonly called probate court. Its primary job is to oversee the process that lawfully revolves all debts, taxes and financial affairs of people who die. Probate court also ensures the remaining assets go to the proper people.

Probate court selects the estate administrator when you die without a will. Generally the surviving spouse is appointed. If there’s not a spouse, or they decline, the court will appoint the next nearest relative.

Starting Probate without a Will.

When a person dies, someone needs to do the work of closing out their estate. If you want to start a probate without a will by serving as the administrator, you typically start by filling a petition in probate court. Here’s a step by step look at how to get the process going.

  • Step 1: Review the deceased person’s assets to see if the estate qualifies for a small estate probate exemption. You will need to establish a value to the estate and produce an itemized list of all property needing distribution.
  • Step 2: Determine in which country you will file probate proceeding. Generally, it’s the country in the state where the person lived. If they own a home, it may be the country where the home is located.
  • Step 3: Bring a certified copy of the death certificate to the courthouse and request forms to petition for Letters Of Administration. By filling this document, you’re asking the court to act as personal representative of the estate.
  • Step 4: Complete and file the form requesting administration. You should be prepared to provide the names and address of all living relatives.
  • Step 5: You are required to let everyone know you are petitioning for probate. You will need to publish in local newspaper or other forms designed to inform people that a Notice of Petition to Administer Estate. Family members will need notice sent to their homes. This serves as a notice to all creditor to file their claims against the estate. Creditors usually have four months to file their claims.
  • Step 6: Your petition is granted unless another more suitable representative comes forward.

Getting through a probate can be a full time job. It can feel like there’s an endless array of forms to file and deadlines to meet. To make matter worse, you can be held personally liable of errors made during the probate process. When you have probate questions, seek help from an experienced attorney. Receive a free case review and make the process easier for you and your loved ones. Contact a qualified estate planning attorney to help with the probate process.

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Career Province Team.

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