Tenancy By the Entirety in Idaho Explained

Tenancy By the Entirety in Idaho Explained

When you’re married in Idaho, real estate and other property you acquire during the marriage is community property equally owned by the spouses. If one spouse dies, community property will usually pass to the other spouse, but there may be some special situations. You may also need to plan for separate property. A tenancy by the entirety is a common estate planning tool for married couples, but you’ll need to take a slightly different approach in Idaho.

Idaho Succession Rules When a Spouse Dies

When one spouse dies without a will (or with property not covered by a will) and leaves a surviving spouse, there are three possible outcomes under Idaho intestate succession laws.

  • With descendants: 100% of community property and 50% of separate property to surviving spouse. 50% of separate property to descendants.
  • With parents (no descendants): 100% of community property and 50% of separate property to surviving spouse. 50% of separate property to parents.
  • No descendants or parents: 100% of both community and separate property to surviving spouse.

These default rules may or may not be your intended outcome. For example, your home may be separate property because one spouse bought it before marriage or inherited it, but you may still want 100% of your home to go to your spouse instead of being divided. You may also wish to leave all or part of your share of community property to someone else.

You can achieve virtually any desired outcome using a will or other planning tools. You have the right to determine the disposition of your property including all separate property and your half of community property. It is often a good idea in a healthy marriage to discuss this with your spouse, but you have no legal obligation to do so unless you’ve entered into a separate legal arrangement.

What Does a Tenancy by the Entirety Do?

A tenancy by the entirety is a special way of holding title to a house or other property. It includes the following benefits and restrictions.

  • Both spouses own the property as a whole. They do not have individual control or property rights in “their half.”
  • A tenancy by the entirety can terminate by mutual agreement, death, or divorce.
  • Upon the death of one spouse, the property automatically passes in full to the other. It does not go through probate.
  • Individual creditors of one spouse generally can’t pursue a claim against the property.
  • An individual spouse can’t sell all or a portion of the property, or grant any type of interest in the property, without the consent of the other spouse. This includes using the property as collateral for a loan.

Does Idaho Recognize a Tenancy by the Entirety?

Idaho law does not recognize tenancies by the entirety. An Idaho bankruptcy court held that when a couple tries to establish a tenancy by the entirety, the jointly owned property is still subject to claims by each owner’s individual creditors (In re Antonie, 432 B.R. 843, 851 (Bankr. D. Idaho 2010)).

An Idaho ownership interest labeled as a tenancy by the entirety would typically actually be a joint tenancy with right of survivorship under the law. Tenancies by the entirety created in other states would also typically be treated as joint tenancies with right of survivorship if they now fall under Idaho jurisdiction (for example, the spouses moved from another state).

What is a Joint Tenancy with Right of Survivorship?

A joint tenancy with right of survivorship is similar to a tenancy by the entirety. Here are the key differences.

  • The owners can be anyone, related or unrelated, rather than just spouses.
  • Each owner has an equal share of ownership and full rights to use the property.
  • The right of survivorship means that if one owner dies, their interest passes to the other owner(s). The deceased owner’s heirs have no right to any share in the property or compensation for that owner’s share. For a married couple, the surviving spouse becomes the sole owner.
  • A joint tenant can sell or transfer their interest in the property without the consent of the other owner(s). This would change the ownership to a tenancy in common (no right of survivorship).
  • An individual owner’s creditors can make a claim against the property and force a sale.

What are the Downsides of a Joint Tenancy with Right of Survivorship?

The major downside of a joint tenancy with right of survivorship is the lack of protection against creditors. If one spouse has individual debts, from before the marriage or otherwise, the other spouse could also lose their home.

You may also have concerns about each spouse having unilateral control over their ownership interest. While they can’t sell the entire house without your consent if your name is on the title, such a move could potentially harm your ownership value.

What is a Tenancy in Common?

A tenancy in common is another way of owning property that doesn’t have special restrictions or protections. Each owner owns an equal share unless otherwise specified.

What if the House is Community Property?

If the house is community property and not held in any special form, it may still function similarly to a joint tenancy with right of survivorship. For this to work, the deceased spouse can’t have willed part or all of their share in the home to someone else. If you have concerns about this or over fairness when one spouse has large individual debt, you may wish to consider a prenuptial agreement or making alternative arrangements in your estate planning documents.

What if the House is Separate Property?

If the house is separate property and not held in any special form, it depends on whose separate property it was.

  • Separate property of deceased spouse with descendants or parents: The surviving spouse and descendants/parents each take half an ownership interest in the house. They would need to either agree on living arrangements or sell the house.
  • Separate property of deceased spouse without descendants or parents: The surviving spouse takes a full interest in the house.
  • Separate property of surviving spouse: The house was and remains the property of the surviving spouse.

If these are not your desired outcomes, you can use a joint tenancy with right of survivorship to guarantee that your spouse will become the sole owner. You can also use a will or other planning tools to do things like allow your spouse to live in the house for life before someone else inherits the house or to leave all or part of the house to someone else.

What About Other Property?

You can hold other property besides a house in a joint tenancy with right of survivorship. This can include bank accounts, brokerage accounts, or other assets. The joint tenancy with right of survivorship would work similarly to how it would for a house.

Can a Will or Trust Override a Joint Tenancy with Right of Survivorship?

A will or trust can only transfer what you own. The reason that a will can leave community property to someone other than your spouse is that you have the right to choose what to do with your half of the community property.

When you enter into a tenancy by the entirety or joint tenancy with right of survivorship, you agree to give up interest in the property on death. Therefore, the property skips probate, and your will or trust is disregarded.

Is it Hard to Create or End a Joint Tenancy with Right of Survivorship?

If both spouses are in agreement, buying property to be held as a joint tenancy with right of survivorship is essentially a matter of writing down the magic words when you buy the property. Similarly, all it takes to sell the property or change to a different form of ownership is for both spouses to sign off. If one spouse dies, the surviving spouse only needs to provide a death certificate to become sole owner.

Filling out the forms is only a small fraction of your lawyer’s job. The real challenge is making sure you hold the property in the right form of ownership for your family.

Schedule a Consultation with an Estate Planning Lawyer

If you’re considering a tenancy by the entirety or other options, talk to an estate planning lawyer about what’s right for you. Schedule a consultation with Lilac City Law now.

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12 Months of Estate Planning: A Plan to Get Your Estate Plan Set up in 2020

12 Months of Estate Planning: A Plan to Get Your Estate Plan Set up in 2020

Estate planning can be one of the most important things you do for your family’s future, but it can also be overwhelming. Between heavy subjects you don’t want to think about, the need to do a lot of paperwork, and everything else going on in your life, it can be too easy to keep putting off your estate plan until later. The problem is you never know when you will need it. Get started before it’s too late by doing just a little bit at a time.

January: Determine Your Goals

Who do you need to take care of? Do you have a spouse that relies on your income? Children that still need an education? Grandchildren that you want to give a head start in life? Charities or other important causes that you wish to support?

Your estate plan isn’t a chore you have to check off to be a responsible adult. It’s something you want to do to achieve your goals. There are many types of estate planning tools available that work best in different situations. To pick the right tools, you need to begin with a plan for what you want to do — just like drawing up the blueprints for a house.

February: Take Inventory

After you know who you want to support, you need to know how you can. What assets do you have? Your home? Cash savings? Investments? A business? Family heirlooms?

When you divide your estate, you may wish to provide some loved ones with financial support and others emotional support in the form of specific items that will mean more to them. It’s also important to understand that if you have any debts, your creditors will take precedence over your heirs, so you need to account for those as well.

March: Create a Will

Wills are the most common estate planning tool because they are the simplest way to ensure that each of your loved ones is cared for in the way that you’ve chosen. You can create a will on your own, but there are some legal technicalities that could leave your will open to challenges or having some of your wishes not honored. An estate planning attorney can help you avoid those complexities. Even if you plan to use other estate planning tools, having a will is still a good catchall for things that may not otherwise be covered.

April: Name Beneficiaries

When you name beneficiaries on your bank accounts and investment accounts, those accounts automatically go to your chosen beneficiaries upon your death. This allows those beneficiaries to receive financial support without having to wait for your will to go through probate.

The main benefit to taking this step is so that any family members who need immediate financial support can receive it. For example, if they relied on your income to cover their living expenses, they may not have enough money to buy groceries or to make rent or mortgage payments on your home that they continue to live in.

May: Consider a Trust

A trust is another way to keep assets out of probate and transfer them directly to family members. Again, the goal is to skip the weeks or months of delays it takes to execute your will in probate.

A trust can also be used to ensure that the funds you leave go towards your intended purpose. You may leave a trust for your spouse’s living expenses or your children’s schooling. You may also restrict your children’s or grandchildren’s access to their inheritance until they are older and wiser and will hopefully put it to good use.

June: Plan for Your Healthcare

In addition to planning for what happens after you’re gone, you also need to have plans for what happens if you can’t make decisions for yourself while you’re hospitalized for a serious accident or illness. Even in close families, family members may disagree about what you want, and doctors may not be able to legally follow their instructions.

To ensure your wishes are honored, consider a living will, advanced healthcare directive, or medical power of attorney. These documents allow you to designate a trusted loved one to make decisions on your behalf with full authority. You can also include any specific treatments or end-of-life options that you want your agent to request on your behalf.

July: Designate a Financial Power of Attorney

Like the person you select to make your healthcare decisions, your financial power of attorney will step in if you’re unable to manage your finances. A full durable financial power of attorney gives your agent the ability to manage your bills and assets if you’re ever temporarily or permanently incapacitated.

You can also use a financial power of attorney when you’re still able to care for yourself to some degree but need extra help with certain tasks. For example, you might sign a limited scope power of attorney allowing a loved one to manage your checking account and pay your bills.

August: Look Into Life Insurance

Life insurance is another tool you can use to provide for your family financially when you’re unable to. Many working people opt to buy a policy large enough to replace their expected future income to protect their spouse’s and children’s lifestyles that were planned around that income. You can also use life insurance to guard against things like medical debts from reducing what you can leave to your family.

As with your other assets, you will need to name one or more beneficiaries in your life insurance policy or provide for the cash value of the policy when you write your will.

September: Plan for Estate Taxes

Estate taxes generally only affect families with multi-million dollar net worths, but you still need to be aware of them. Estate taxes can be particularly devastating when your net worth is mostly in real estate, a business, or other non-liquid assets. This type of situation often forces a family to sell a treasured home or multi-generational business to pay the tax bill. By planning how you structure your estate ahead of time, you can avoid taxes or at least make sure your family will have the ability to pay them.

October: Protect Your Business

In one sense, a business is like any other asset. You can leave it in your will to a loved one, or it can be part of your general estate to be divided up between your heirs.

However, businesses also have to be maintained if they are to continue to provide for your family. The death of an owner or key employee can be highly disruptive to the business and possibly even put it out of business. You should create a succession plan that provides for continuity of operations no matter what happens and that also gradually prepares your loved ones to follow in your footsteps if that’s your goal.

November: Organize Everything

Your estate plan is no good if no one knows about it to put it into action. Keep all of your important documents together in a fireproof safe that your family knows the location of. You may also wish to leave copies with your attorney or in a bank safe deposit box. Again, tell your family.

When you have a medical power of attorney or financial power of attorney, give copies to your doctors or banks in advance. Don’t forget to give them updated documents if you change or cancel your existing plans.

December: Review Everything Each Year

When you stop to reflect on another year gone by, think about how the changes during the year will affect your family’s future. New children may be born, others may grow up and no longer need as much help, and you may have new wealth to consider. While you don’t need to redo your estate plan every year, you should update the relevant portions of it after major life changes so that it continues to meet your goals for your family.

Estate Planning with Lilac City Law

Lilac City provides a full range of estate planning services and can help you develop a comprehensive plan for you and your family. We can help you put it together over the next year or help you get it done even faster. To learn more, contact us now to schedule a consultation.

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What Do I Need to Know about a Power of Attorney in WA State?

What Do I Need to Know about a Power of Attorney in WA State?

A power of attorney gives a loved one the legal authority to handle your healthcare, financial, or other important decisions for you if you’re unable to. This can help you both during major life events when you need extra help or if you’re physically or mentally unable to make decisions on your own.

What Exactly is a Power of Attorney?

A power of attorney is a legal document that grants the named person the power to take the actions you list in the document. Doctors, financial institutions, schools, and others honor instructions from the power of attorney as if they were coming from you. Without this document, they would usually be legally bound to ignore the power of attorney’s instructions even if they believe that’s what you would want.

A power of attorney is not actually an attorney and doesn’t have to be a lawyer. It can be anyone you trust. The name just means they have similar powers to what you might grant to an attorney.

What Does a Power of Attorney Cover?

A power of attorney can cover virtually all decisions, or it can cover one specific action. What you include is up to you. Power of attorney powers might include the following.

  • Healthcare decisions
  • Care of your children
  • Paying your bills
  • Managing your finances, including selling assets or investments to cover expenses
  • Operating your business
  • Making decisions in litigation on your behalf (similar to how you would instruct an attorney rather than the actual legal work)

What Form Does a Power of Attorney Need?

You can find many templates and examples, but there is no specific form to use. The power of attorney just needs to be clear that it’s a power of attorney, name who you’re choosing as your agent, and list the powers you’re granting that person. It’s preferable to have it notarized so that there’s no question about its validity. You can sign in front of two witnesses rather than a notary if you need to.

What is a Durable Power of Attorney?

A durable power of attorney is a power of attorney that lasts even if you’re incapacitated due to illness or accident. Not all powers of attorney are durable. For example, someone working abroad may designate someone to manage their affairs back home without making the power of attorney durable.

A power of attorney that isn’t durable terminates on your incapacitation. To be durable, the form must include your intent that it be durable.

What Do You Do With a Power of Attorney?

Your agent will need to present the power of attorney form to prove that they’re authorized to act on your behalf. You should keep at least one copy for yourself with additional copies located wherever you have copies of your other important documents. This allows your family to be aware of the power of attorney if something happens to you.

Can You Cancel a Power of Attorney?

You can cancel a power of attorney at any time for any reason. You just need to notify your agent. You may also wish to notify anyone that your agent was working with if you wish to make sure they no longer honor your agent’s instructions.

How Long Does a Power of Attorney Last?

A power of attorney might be indefinite, last for a specific amount of time, last until something happens, or only cover a specific action or event. You decide this when you create your power of attorney. No matter which option you choose, you still retain the right to cancel it early.

In the case of a durable power of attorney, it will be in effect from the time a physician or court declares you are incapacitated and last until death. You can cancel it if you recover and are competent to do so.

What Happens to a Power of Attorney When the Principal Dies?

If you die, your agent’s powers cease when they learn of your death. A power of attorney cannot be used to handle your estate even if you try to include that in your power of attorney. You would need to rely on a will or other planning documents.

What Must a Power of Attorney Do?

A power of attorney must act in your best interests. They cannot use your funds for their own benefit. When authorized to make medical decisions, they must follow your wishes as they understand them even if they would choose a different course of action.

What Can’t a Power of Attorney Do?

There are several things that you can’t include in a power of attorney under Washington law. These include several very important medical and legal decisions.

  • Medical: Amputation, shock therapy, life support decisions, or institutionalization. You’d need an advanced healthcare directive instead.
  • Financial: Changing life insurance beneficiaries, modifying a community property agreement, or making monetary gifts unless these actions are specifically included in the power of attorney. Modifying a will or voting in elections can never be included.

What if there is a Disagreement Over a Power of Attorney?

Your agent must follow your instructions, and you can remove your agent at any time. In case of a durable power of attorney where you’re incapacitated, your family can petition a court to invalidate the power of attorney or to force the agent to act in accordance with the instructions in the document.

Is an Out-of-State Power of Attorney Valid?

Most states will honor a power of attorney from another state at least on a temporary basis. If you become a resident of a new state, you should make sure your power of attorney meets the requirements for that state.

What if a Power of Attorney Names Two Agents?

A power of attorney may name one or more agents. If you name multiple agents, they must act jointly and agree on all decisions. You can also allow them to act independently, meaning each can act without input by the other(s), if you specifically state this in your power of attorney.

What is the Difference Between a Power of Attorney and a Living Will?

A living will or advanced healthcare directive spells out what major medical decisions you’d want made on your behalf. These documents are used by your doctors and others to understand your wishes.

A power of attorney’s main job is to designate a specific person you want making decisions for you rather than the specific decisions to be made. While you can limit those decisions in the power of attorney, keep in mind the medical decisions that a power of attorney can never make by law.

What is the Difference Between a Power of Attorney and a Guardianship?

A guardianship has a higher level of responsibility and decision-making than a power of attorney. A guardianship must be approved by a judge, and the guardian must provide periodic updates to the court. A power of attorney only needs the proper forms.

What is the Washington Uniform Power of Attorney Act?

The Washington Uniform Power of Attorney Act was a 2017 law that added safeguards to prevent abuses of powers of attorney. Many of the restrictions and requirements described above were added as part of this act. While you may see references to the Washington Uniform Power of Attorney Act, this is just a formal way of describing the laws that routinely govern powers of attorney.

When Should You Update Your Power of Attorney?

There are several situations where you may need to update your power of attorney.

  • You or your agent have moved, and the distance makes the arrangement impracticable.
  • The agent is no longer willing or able to assume the duties, or you no longer want them to.
  • Your life circumstances have changed and you need to agent to assume different responsibilities.

Do You Need an Attorney to Draft a Power of Attorney?

There is no legal requirement to have an attorney draft your power of attorney. However, a power of attorney confers important legal responsibilities, and you may want to have an attorney confirm that your power of attorney will do everything you want it to with no unintended consequences. Your attorney can also help you avoid technical mistakes that might result in a challenge to your power of attorney. To get help, talk to Lilac City Law today.

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How Should I Plan for Temporary Guardianship in My Family Protection Plan?

How Should I Plan for Temporary Guardianship in My Family Protection Plan?

A temporary guardian assumes the role of a guardian for a limited amount of time. You may need sudden medical care, or if you’re no longer able to care for your children, you may need someone to step in while the permanent guardian prepares to take on their role. To ensure that everything goes smoothly, you should have a plan for this in your planning documents.

What is a Guardian?

A guardian is a person that makes important financial, medical, and other decisions for another. An adult may need a guardian if an illness or injury renders them unable to care for their own affairs either temporarily or permanently. A child may need a guardian if something happens to their parents so that the parents aren’t able to care for the child.

What is a Temporary Guardian?

Unlike many guardianships, which are indefinite, a temporary guardianship lasts for a specific amount of time or until a certain condition is met. Once the temporary guardianship ends, a permanent guardian takes over if one was nominated, other provisions of your estate plan take effect, or your family and a court reach a decision.

Here are some scenarios where a temporary guardian may come into play.

  • You live far away from family including who you would want to be your primary guardian. In the event of a sudden illness or accident, you designate a close friend to handle your affairs until your family member is able to arrive and take over.
  • You need a substitute in case your selected guardian has a change in circumstances that makes them temporarily or permanently unable to fulfill their duties.
  • You are a military spouse and need someone to take over if something happens to you while your spouse is deployed until your spouse can return home.
  • A sudden emergency makes it impossible for you to complete the full guardian nomination process in time.

What Happens at the End of a Temporary Guardianship?

A temporary guardianship only has legal effect for the designated time or until the specified condition is met. At the end of temporary guardianship, it would be as if you didn’t have a guardian at all. If you have the mental capacity to do so, you can extend the guardianship. If you do not have mental capacity and have no other plan in place, the court may consider what the temporary guardian has done so far when deciding on a permanent guardian, but the fact that they were your temporary guardian is not a deciding factor in selecting the permanent guardian.

What is an Informal Guardianship?

You may sometimes hear a temporary guardianship referred to as an informal guardianship. This is because the temporary guardianship may be set up outside of the courts. Often, the informal guardianship is set out in a notarized letter. This is not as strong as a power of attorney or full guardianship but can still be useful in certain situations. One of the most common uses is when a child will be going to live with a relative for a while and the parent will still be able to address any concerns that arise while the relative assumes primary care.

What is a Testamentary Guardianship?

A testamentary guardianship is a guardianship listed in a parent’s will. This is another type of informal guardianship.

It is not possible to legally leave a child to another relative in a will even when well-intentioned and the whole family agrees. The job of a will is to answer questions about property distribution.

What a testamentary guardianship does is simply to make the wishes of the parent known. Courts will usually honor these wishes on a temporary basis if the family is in agreement, but the full guardianship process will need to happen before the guardian becomes permanent.

What is an Emergency Guardianship?

Some people may refer to the temporary guardianship they’ve set up as an emergency guardianship, but an emergency guardianship usually means a temporary guardian appointed by the court. Courts usually appoint emergency guardians when someone has a serious accident or illness and needs a guardian but never nominated one. The court appoints the emergency guardian for a limited period of time to handle the emergency while the regular guardianship process plays out.

What is a Limited Guardianship?

A limited guardianship means the guardian has limited powers. For example, you may wish to appoint a guardian to make medical decisions and a separate conservator for financial decisions. A limited guardianship can either be temporary or permanent.

Do I Need a Temporary Guardianship if I Have a Permanent Guardian?

Even if you’ve nominated a permanent guardian, the court still needs to formally approve the guardianship before it can take effect. Designating the same person to act as your temporary guardian can avoid any ambiguity about what should happen while that process plays out. In addition, you may still need a backup temporary guardian in case the permanent guardian can’t immediately step in.

Do Grandparents or Other Relatives Automatically Become Guardians of Minor Children?

Grandparents or other relatives do not automatically become guardians of minor children if something happens to the parents. They can generally take the children in temporarily as long as there are no objections from the rest of the family, but their authority to make decisions regarding school, doctors, etc. would be limited to emergency decisions only. In addition, any disputes between family members about what should happen could be disruptive to the children’s lives during an already difficult time.

What if the Parents are Divorced?

A temporary guardianship or other arrangements can’t override the other parent’s parental rights. Generally, both parents would need to agree to a temporary guardianship. For example, both parents may want to jointly make a plan in case something were to happen to both of them.

Otherwise, courts would generally look to one parent to take over if something happened to another. For example, if two divorced parents with joint custody lived in the same town and one was hospitalized, the child would usually go to live with the other parent rather than a temporary guardian appointed by the one in the hospital. If they lived far apart, a temporary guardian might come into play while travel and other arrangements are made.

Should Children Know About Temporary Guardianship Plans?

Depending on their age and maturity, it can be a good idea to let children know your plans for a family member to take care of you and/or them if something were to happen. This allows you to gain their input and can also ease fears they have about being orphaned that you may not even be aware of.

What is a Temporary Guardian’s Financial Responsibility?

You generally maintain financial responsibility for yourself and your dependent children even when you’re incapacitated. The temporary guardian may have the right to use your funds to further your and your child’s interests. This would be subject to any financial planning documents you have in place.

To make this process easy and avoid burdening the guardian, you should account for this in your planning documents. You may wish to set aside specific funds or make sure your guardian will have access to your checking and savings accounts.

Can a Temporary Guardianship Be Terminated Early?

If you have sufficient mental capacity to do so, you can terminate a temporary guardianship you established for any reason. A family member or other interested person may also petition a court to end a temporary guardianship. They may believe that you were not of sound mind when you established the guardianship or that the guardian isn’t fulfilling their duties. The court would then make a decision that it believes is in the best interest of you and/or your children.

Do I Need a Lawyer for a Temporary Guardianship?

Even though you can set up an informal guardianship on your own, working with a lawyer helps make sure everything is in the proper form so that it can take legal effect. Your attorney can also help you build in the necessary financial and other arrangements into your family protection plan. To learn more, contact Lilac City Law today.

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Disinheriting a Child and Other Considerations of a Last Will and Testament

Disinheriting a Child and Other Considerations of a Last Will and Testament

Leaving your children out of your will is not a decision that is taken lightly. But sometimes there are considerations that you need to make that make it the more prudent decision to leave them out of your will. If you decide to disinherit children, it is something you should do as soon as you make the final decision, which will give them less of a chance to contest it and end up with an inheritance you didn’t want them to receive. 

Things You Should Consider Before Choosing to Disinherit 

You should never use disinheritance as a tool for controlling your child’s behavior. Trying to control a person or situation with money can often lead to bad feelings and bad blood. While there are valid reasons for wanting to disinherit your child, you might want to look at the other possible options first to see if they could be the right fit before choosing to cut your child out completely. Other options you might want to consider before disinheriting your child include:

Controlling Their Inheritance Through the Use of a Living Trust

If you want to allow your child to have money but control how and when they get it, or what they use it for to ensure it is used responsibly, a living trust may be the better option. You can set up a trust to divvy out the money in small amounts over a period of time or have the funds directly sent to pay bills. You will need to provide the trustee with precise instructions on how, when, or for what the distributions can be made. This may be the ideal option for those who are considering disinheriting for fear of the money being wasted. These trusts can even include milestone incentives such as payments for going to college. 

Providing the Power of Appointment to Someone Else

You can also choose to provide a trustee with the power of appointment, which can allow your child to re-inherit if they meet certain terms or conditions. This means that the child will have the right to earn their portion of the estate back as long as the trustee of a lifetime trust is given the instruction to allow this to happen. 

How to Write Your Children Out of Your Last Will and Testament

Following a few simple steps can make disinheriting your child a little easier and help provide the best chance for your last wishes to be followed. You will need to:

1. Create a Will

While this sounds simple, many people may communicate their last wishes to family members, but not put the information formally down in writing. Failing to have a will in place means that your estate will pass through intestate succession upon your death. When this occurs, the estate will most likely split up between a living spouse and children. Once you have drafted a will, make sure that it is witnessed and notarized. Then place it in a safe place where the person in charge of executing your estate will have access to it. 

2. Indicate the Deliberate Disinheritance of the Specific Child or Children

Just not mentioning the child can leave the will open for interpretation and subject to being contested. The disinherited child could claim you forgot to put them in, and since they were omitted and not explicitly listed as being disinherited, it may give them a chance in the court system. Acknowledge the specific child or children by their name in your will and add a statement saying that for certain reasons, you have decided to make no provision for them or their descendants in your will. This will provide the support that you had intentionally meant to leave them out of the estate split. 

There are two things that you will need to consider when wording this in your will. First, leave the reason vague, such as “for reasons known to me.” If you state a reason, you open the door for the child to say that that reason is no longer valid. For example, if you said the disinheritance is because they have finances to meet their needs, they could prove that they no longer have the money to keep themselves financially stable. You also never want to leave a child an amount that basically amounts to leaving them with nothing. Doing this will give your child access to the estate information without having to file a request with the court. 

3. Inform Them of Your Decision

It is always best to not make this a surprise that a child learns upon your death. While this can be awkward, it will make the process smoother as they will have more time to get over the initial frustration if there is any and not make any hasty decisions without thinking it through. This is especially important if your other children will be receiving money. It can reduce the chance of the will being contested and bad blood to develop between siblings. The one case where informing your child will not be necessary is if you have been out of contact with them for a significant amount of time. They are likely not to be shocked about not being included in the will at this point. 

4. Update Your Will if You Reconsider

Things may change over the years since you have written your will, and the child’s circumstances may have changed as well. If you decide that you want to put them back in your will, be sure that you update the will as soon as you reconsider. If there is no amendment to your will, it is likely the original intention will stand, and your child will not have a claim to any of your estate. 

Common Challenges for Contesting a Disinheritance in a Will

When adult children contest a will, they will usually use one of three main challenges. Knowing what these challenges are will better help you to understand how to handle your will to provide the best defense against the challenges. The common challenges include:

Undue Influence

A challenge of undue influence may be presented by a disinherited child if they feel that the disinheritance was swayed by another party. This means the contestor felt that the testator was under pressure from someone outside of the natural heirs to cut them out of the will. Undue influence often occurs when a third party threatens force or embarrassment to the testator if they do not comply with their requests. For this type of challenge, there is no need to prove the mental state of the testator when they were writing their will but instead show that they are likely to have made a different decision if they were not under the influence of the other person to sign the will. Though the contestor will likely need to have either medical or psychological records, as well as witness testimony to show the influence on the testator. 

Lack of Capacity to Create a Testament

Under this type of challenge, it is alleged that the testator did not have the mental capacity to make the will. Contrary to what many people may think, this challenge is not easy to prove. The court requires substantial evidence to confirm that the testator was not of sound mind when they drafted the will. Time also makes this challenge difficult, because if the will was signed many years before, the court would require medical evidence from the time that the will was signed, that the testator lacked mental capacity. Lack of capacity can be even harder to prove if the will was signed in a lawyer’s office since they are extremely cautious about a testator’s mental state when signing any documents. 

Improper Execution

If you are drafting your own will, there is a possibility that your disinherited child could challenge it based on improper execution. There will be specific laws to follow depending on the state you file in, but most of the time, you will need to be at least 18, of sound mind, and in the presence of two witnesses who have no financial interest in the will. The witnesses must be in the presence of the testator, and all must witness each other sign the document. You can lessen the likelihood of a challenge of improper execution by speaking with an experienced legal service to ensure that you have followed the protocols required by your state.

Disinheriting a child from your will is not a difficult process, but one where legal advice may help make the process smoother. If you are unsure of the requirements for executing a will in your state, contact a legal service to ensure that you have everything completed and filed properly to ensure your final wishes are fulfilled in the want them to be. 

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What to Know During the Guardianship Nomination Process

What to Know During the Guardianship Nomination Process

If something happened to you and you were unable to take care of yourself or your children, who would step in? Ideally, it would be someone you chose. Nominating a guardian before something happens allows you to do just that.

What Is a Guardian?

Think back to school forms asking for a parent or legal guardian. A guardian is a person who takes care of someone else when that person is incompetent to handle their affairs on their own. This could be due to a serious injury or illness. When minor children are involved, they may need a guardian if both of their parents are incapacitated or pass away.

A guardianship will generally cover similar decisions to what a parent could make for a child — even when the person needing a guardian is an adult. This may include medical decisions and, for minors, other life decisions such as where to go to school.

Guardianships can also cover managing the person’s finances, but finances are sometimes broken up into a separate conservatorship. Exactly what a guardian or conservator can do will be spelled out when the court approves the guardianship or conservatorship.

How Is a Guardian Different From Godparents?

When your children were born or shortly after, you may have appointed godparents. Godparents are often expected to step in and take charge of the children if something happens to a parent, but appointing a godparent is largely a religious or ceremonial action. Godparents aren’t directly recognized under the law.

To give a godparent the legal authority to act, and avoid conflicts with other family members who may wish to step in instead, you will need to go through the legal process of appointing the godparents as guardians, trustees, or other legal roles.

How Is a Guardian Different from a Power of Attorney?

A power of attorney might grant all of the powers that a guardian can exercise. The difference is mainly timing. You sign a power of attorney when you have full mental capacity. A guardian is only appointed after you’re incapacitated. Part of the guardianship appointment process can include reviewing the wishes you specified when you still had full mental capacity. However, a power of attorney cannot be executed if you have diminished mental capacity, and it may be voided if a court finds you lacked capacity when you signed it.

Because a power of attorney can be limited in scope based on how you had your lawyer word it, it may not cover all of the actions that need to be taken on your behalf. In those situations, a guardian would be appointed to fill in the gaps.

How Do You Select a Guardian for Yourself?

Like a person dying without a complete will, the law has default rules for how to select a guardian based on relationships and willingness to serve. The court will also consider the ability to do the job of each person who wants to be the guardian. This can lead to serious family conflicts and large legal bills when two family members wish to serve as the guardian and can’t come to an agreement.

To avoid these types of problems, you can nominate a guardian. The judge isn’t bound to follow your nomination but will give it great weight and will only overrule your nomination with a strong cause. The process is called nomination of guardian, and you can select any adult of sound mind. Like a will, the judge will review your selection to ensure you were mentally fit to make the decision and weren’t under duress or tricked into doing so.

How Do You Select a Guardian for Your Children?

The process for nominating a guardian for your children is similar to nominating a guardian for yourself. The only real difference is that it’s even more important to make your decision in advance so that your children can have a sense of stability and not be left hanging during long court battles.

You should, of course, also talk to potential guardians to see if they are willing to take on this responsibility. However, being nominated does not obligate the person to accept the judge’s appointment if the time ever comes. Therefore, you probably want to select at least one alternate.

Do You Need a Guardian If You Left a Trust for Your Children?

You may have set up a trust to provide for your children financially in case something happened to you. The trustee is then able to manage their financial affairs in accordance with the trust.

However, someone still needs to take custody of the children to manage their daily lives and important life decisions. This is where you need to nominate a guardian, and your estate planning documents should lay out the responsibilities of both the trustee and the guardian.

Who Supervises a Guardian?

Once appointed, a guardian must make regular reports to the court. This includes financial information as well as other major decisions. Other family members can also go to court to contest the guardianship if they believe the guardian is doing something improper.

What If There Is a Conflict Between a Guardianship and a Power of Attorney or Trust?

There should be no conflicts with a guardianship and power of attorney or trust because the court should appoint the guardian in consideration of other estate planning documents. The guardian should only carry out duties not already provided for. To avoid confusion, you should attach your other estate planning documents to your nomination of guardianship to ensure that the judge will be aware of their existence. If a power of attorney or trustee believes a guardian was appointed improperly or is going beyond their role, they can contest those actions in court.

Are There Downsides to Being a Guardian?

Whether a guardianship is for an adult or minor children, being appointed as a guardian is a major responsibility. Like a parent, it can mean making tough choices and sometimes needing to put the other person’s wellbeing before the guardian’s own. The nominated guardian will also need to go to court during the nomination process and will need to make ongoing reports to the court as long as they remain guardian. Being a guardian is a lifetime appointment unless the judge appoints someone else.

Does a Guardian Have to be Local?

A guardian can theoretically live anywhere in the world. However, the judge will want to make sure that the guardian will be able to effectively perform their responsibilities without being unduly impacted by long-distance. For minor children, since they will often go to live with the guardian, the judge may also consider how a move would impact their lives and their access to other family members. You can and should include your wishes on these issues in your planning documents so the judge can understand the choices you made and to avoid conflicts between family members.

If you’re relying on a long-distance guardian, you should also consider who will act in a sudden emergency such as you being rushed to a hospital. You may want to have an alternate power of attorney that gives a more nearby family member the power to act until your guardian is able to step in.

Who Pays for Legal Fees During Guardianship Proceedings?

Your appointed guardian should understand that they don’t have to take on legal costs. If you have liquid assets, the court will pay the attorneys reasonable fees from your funds — just like any other of your expenses would be handled. If you don’t have liquid assets, there is a special guardianship fund established by the government. In no cases does the appointed guardian pay for court fees, although you may wish to set aside money to cover other expenses they may face while acting as a guardian.

Please note that this is separate from creating your nomination of guardian documents. Those costs would be arranged between you and your attorney just like any other legal work.

How Quickly Can a Guardian Be Appointed?

Even for a nominated guardian who isn’t contested, the court process is usually measured in weeks if not months. During an emergency situation, your family could petition the court to appoint a temporary guardian pending full court review. This person could potentially be the guardian you nominated.

In more urgent circumstances, such as an emergency room doctor needing an immediate decision, any power of attorney or living will documents that you created and are readily available will be used. Otherwise, the hospital or other entity would attempt to contact your next of kin and follow their authority in accordance with local law.

Talk to an Experienced Estate Planning Attorney

To learn more about how nominating a guardian fits in with your estate planning strategy or to start the nomination process, talk to an experienced estate planning attorney at Lilac City Law today.

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The Importance of Power of Attorney During Estate Planning

The Importance of Power of Attorney During Estate Planning

Your estate planning has many different parts that all need to move in the same direction in order to be successful. A vital part of this process is how to disseminate the various powers of attorney (POA). The POA will be one of the most important estate documents that you create, so you owe it to yourself to know as much as you can about it. Let’s take a look at just how important the POA is and how it will be used during the estate planning process.

What Is the Power of Attorney?

The power of attorney is the power to organize affairs on your behalf. There are different powers of attorney for different aspects of your life. For the purposes of this text, we will focus most on the financial POA, but there are also medical POAs and others that may apply during the estate process depending on circumstances.

In most cases, a power of attorney becomes effective immediately upon document execution. Contrary to popular belief, powers of attorney are not only for when a person becomes mentally incapable. In many cases, the POA document does not completely remove the power of the principal to manage their or her own affairs. The document simply grants the agent the power to act in place of the principal if needed. If the principal remains mentally competent, he can change the POA by replacing the agent or revoking the power totally.

However, the POA document truly becomes the most important document in the estate planning portfolio if a principal becomes somehow incapacitated or otherwise unable to handle their own affairs.

What Happens Without a Power of Attorney in Place

If a principal becomes incapable of handling their own affairs and has no power of attorney document in place, the family of the principal faces a potentially contentious situation. The POA document is the document on record of the wishes of the principal. Without it, there is no direct claim to the finances that the principal was in control of. Family members may begin to fight over the right to control things, especially if the estate is especially large or there are many valuable assets to consider.

In place of a designated person with the powers of attorney, the affected parties may agree to file for guardianship of the assets and property of the principal that has been disabled. Instead of simply following the wishes of the principal as mapped out in the POA, the family must now go through an often long and drawn-out court procedure.

The Process of Guardianship

During the court process of selecting a guardian, there will usually be a lawyer who is representing the Petitioner. The Petitioner is the individual who is looking to be named as the guardian. The Petitioner and their attorney will need to face, at the very least, an attorney who is in court to represent the rights of the person who has been disabled. No matter how close the family is, this process will likely generate thousands of dollars in legal fees in order to legally appoint the guardian.

Keep in mind also that a power of attorney document that is not clear may trigger this contentious process as well. You need to have the right attorney with the right experience in order to avoid these problems — just having a POA document that is not appropriate for your situation is not enough. A properly drafted power of attorney directly from the principal, while he is competent, is always preferable to a guardianship court proceeding.

Even when a legal guardianship is in place, the court maintains a Big Brother stance over the guardian to supervise the administration of the estate. Guardians are much less free to manage an estate than someone who is appointed through a power of attorney document. Guardians must always get the permission of the court to legally undertake many important assets that involve the estate, including paying the attorney’s fees for the procedure itself.

The court will also require that a guardian file an accounting of the estate on an annual basis. On top of this, a guardian must also file an inventory of the estate so that the court knows every activity that is taking place within the family estate. Having to report everything to the court undermines the very nature of a private estate, and it is much more expensive than a power of attorney transfer of responsibility. In most cases, the oversight of the court means that a family must employ more legal services in order to stay in compliance with regulations.

If you are in this sensitive situation, we can help you through it no matter who you may be up against. Do not hesitate to call us if you believe you have a legal claim to the estate of a family member who has been recently incapacitated.

Having an Effective POA

As mentioned before, the power of attorney that is set up by the principal must be well-drafted and relevant to the current situation. Otherwise, the court may trigger the guardianship process and all of the expenses and legal hassle that comes with it.

What makes a POA document effective during estate planning? Let’s take a look at the characteristics of an effective power of attorney.

  • Listing specific powers and limitations. A good power of attorney will list out the specific actions that an agent can take on behalf of a principal. Among these actions may be paying bills from the principal’s assets; managing those assets; selling all or part of the estate; and setting up various structures to avoid estate taxes. A principal may wish their estate to be used in a very specific way, and this is what the power of attorney should spell out in clear terms.
  • Language in the POA to persuade financial institutions to accept an agent. The financial institutions that did business with a principal are under no requirement to accept an agent, even from a properly worded POA. Many of these institutions now require language that is very specific in the POA to reaffirm that there is no funny business going on. Agents should also be prepared to reaffirm their responsibility, possibly on the financial institution’s proprietary forms.
  • Listing consolidated accounts. As a principal, if all of your accounts are kept spread out, your agent will have a tough time jumping through all of the hoops of the financial institutions want. Every bank is different. Consolidating accounts as you age not only helps to organize your family finances in the estate, but it also makes it easier to manage while you maintain control over them. You may want to list all of these accounts by name in the POA so that each financial institution can be more assured of your agent’s viability.
  • Decide on the type of POA. There are two major types of POAs that you can consider: the springing POA or the durable POA. The durable POA gives the power of attorney as soon as the principal signs it. The springing POA only takes effect in the event of a certain condition, such as the death, disability or incapacity of the principal. The timing of agent powers is a vital part of a POA. Without it, an agent may try to take over a principal’s estate too early and cause contention. Keep in mind that not all states allow springing POAs.
  • Define the conditions of incapacity. The last thing that you want is for someone else to determine when you are incapable of managing your own affairs. In your POA, you can name a medical professional to certify that you are incapacitated before your agent can take any action on your estate. This puts an added layer of protection in your POA, and it also gives your agent a good check against absolute power while you are still capable.
  • Establish oversight. Although your agent may have power of attorney, you can limit this right with certain oversights. The key is to make sure these oversights are written down specifically and fully clear to your attorney, to your agent, to the overseer and to anyone else who is involved in your estate.

Get Help with Powers of Attorney Today

The points above are just a few of the important aspects of the power of attorney document during estate planning. Every plan is different based on the individual needs of the estate. Make sure that you have the right attorney by your side when it is time to draft this essential document. Give us a call or an email with any questions that you may have about the process, or to get things started with your own POA. Time is of the essence, and there is no better time than now to get your affairs in order.

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Maximizing Tax Umbrellas for Estates

You have made it your life’s work to leave your family with substantial assets to provide for them after you are gone. Legacy is extremely difficult to build, but the estate tax law in the United States does not seem to take this into consideration.

Estate tax can rip as much as 40% of your family’s assets from them, depending on the value of your estate and its location in the country.

Right now is the time to protect your estate from federal and state taxes. If you take the time to create a well thought out plan, you can protect a great deal of the wealth than you have earned for your family.

Here are some powerful tips that you need to know.

Knowing Whether Your Estate Will Be Taxed

Estate taxes are not the same everywhere. Depending on the state you reside in, you do not have to be ultra-wealthy in order to be harshly taxed. Federal estate taxes have a minimum threshold that is in the million-dollar estate valuation, but states like Washington or Idaho can very easily tax middle-class families. If you are leaving behind any sort of investments, bank accounts, businesses, property or life insurance packages, the estate tax applies to you regardless of the size of that asset.

Also note, valuation is often subjective, and it is a discussion you should have with your estate planning attorney.  When it comes to estate taxes, you do not know whether the state will try to value your real estate or businesses higher than other sorts of appraisals – you should not leave it up to them to determine a fair valuation.

Geography is also something to take into account – if you live in a premium real estate location, just a couple of properties can push your entire estate value through the roof.  Sometimes this comes as a big surprise to the family after the passing of a loved one.  For example, the children of farmers often find themselves stuck with huge tax bills upon the death of a matriarch or patriarch because of the hidden value of the land on which the farm sits.

Providing Gifts and Charity the Smart Way

If you reduce the value of your estate through gifts to your children and grandchildren, that value cannot be counted against you for estate tax purposes. Every year, individuals save on the estate tax bill by giving away tens of thousands of dollars to their loved ones.

Moreover, making donations to charitable organizations is another great way to reduce your estate tax bill. These donations may also have an additional tax deduction attached to them. Donating to charity is a great way to ensure that the money you earn is used in the way that you prefer after you are gone.

Consult with your lawyer to learn how to maximize this benefit for your present taxes, as well as the ones that will impact your family after your passing.

Knowing When to Use Your Estate Tax Exemption

Everyone has a large (multimillion-dollar) tax exemption for estate taxes that can be used at any time, not only at the time of death. Knowing how to use the exemption can be an essential tool for reducing a tax bill before passing an asset on to a child.

So, what exactly is the estate tax exemption? Let’s say that you have an asset or an account that you expect to grow exponentially in the coming years. Right now, the value of that business is less than the estate tax minimum. In the future, you expect it to grow beyond this exemption. (In most cases, this type of asset will be a business.) Because you can use the lifetime exemption at any time, if you give away the business to a child or grandchild before it passes above the estate tax minimum limit, there will be no estate tax on the asset when you pass on.

Using a Trust Structure for Your Most Important and Valuable Assets

Establishing a trust is one of the best ways to avoid big out of pocket estate tax payments. Many people may hesitate at the idea of handing over large chunks of assets to others inside of a trust. However, the rules say that the person managing a trust can be a trusted family member, or even yourself.

A trust is one of the most sophisticated tax umbrella structures available to individuals. As such, it requires careful planning and coordination of care to establish & employ correctly. The type of trust that you choose can also make a difference.

If you are serious about preserving your legacy, it is essential that you craft your trusts with the right legal help.  

Using Life Insurance to Protect Your Assets

First, this is not financial advice.  However, life insurance is a conversation we often have with clients and there are certainly a lot of tie-ins to your insurance policies and a healthy estate plan. 

Some of the best life insurance policies, for high net worth individuals (HNWIs) for example, may include provisions for paying off any estate taxes that are due at the time of death. To enable this kind of benefit, you might want to, again, set up a trust.  Regardless, these financial maneuvers and plans should be discussed with your estate planning attorney. 

In short, using life insurance smartly is a great move for HNWIs who would be concerned about the effects of estate taxes on their heirs inheritance(s).

Additional Items to Consider Regarding Your Estate Taxes

Now that we have gone over a few strategies that you can employ to shield your assets from estate taxes, let’s go over a few things that you need to know so that you can go to your attorney as informed as possible.

  • A relatively new tax law (The Tax Cuts and Jobs Act) allows you to give away slightly over $11 million over your lifetime in gifts that will not be taxed subsequently on your estate. This law will only last until the end of 2025. After that, it will fall back to $5 million, meaning that anything more that you give away may get taxed by the IRS starting in 2026.
  • If you are able to get your gifts to your loved ones before 2025, the United States Treasury and the IRS are likely to allow those transfers to stay as tax-favored gifts.
  • However, depending on your situation, using the “step-up” basis may actually save your family more money. The step-up basis allows an asset to be valued at its cost basis at the time of passage rather than at the time of acquisition. Stepping up the cost basis wipes out any paper profit the asset may have generated in the past, reducing the basis for the estate tax.

What Is the Answer? Get the Help That You Need Right Now.

We are here to help you with properly managing and maximizing the tax umbrellas available to you for your estate.

Protecting your estate is an ongoing responsibility – one that will require experienced legal assistance for the entire process of establishing your estate plan and modifying it over the coming years and decades, as necessary.

If you are ready to protect your hard-earned lifetime work, contact us today!

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Medicare vs. Medicaid: What’s the Difference?

Medicare vs. Medicaid: What’s the Difference?

Do you feel confused when people start talking about the difference between Medicare and Medicaid?

If so, you are not alone. One study found that only 4% of Americans could correctly explain the basic terms of their health insurance policy.

The thought of navigating the world of health insurance on your own may seem overwhelming. This is especially true as you approach your “Golden Years” and the reality of Medicare vs. Medicaid stares you in the face.

In this post, we will look at the difference between Medicaid and Medicare so you can make an informed decision. 

Understanding Medicare

Medicare is the primary health insurance provider for Americans over 65.

It can also provide coverage for those under 65 who receive Social Security Disability Insurance benefits.

Medicare is composed of 4 major parts. Here’s a brief rundown of each one.

Medicare Part A

Part A is what most people think of when they hear the term “Medicare.”

It covers hospitalization for those over 65 as long as they (or their spouse) worked and paid Medicare taxes for at least 10 years.

For most enrollees, this aspect of Medicare is free. However, you still have to pay deductibles and co-pays for certain services.

Medicare Part B

If you are eligible for Part A, you are also eligible for the health insurance benefits offered by Medicare Part B.

Part B offers coverage for services and equipment that are medically necessary. These include doctor’s visits, x-rays, lab work, and outpatient procedures.

This aspect of Medicare is not free. The monthly premiums are usually deducted from your Social Security payments.

Medicare Part C

Many who enroll in Medicare Parts A and B also sign up for supplemental coverage through Part C.

Also called “Medicare Advantage,” Part C works much like a PPO or HMO plan you likely had during your working years. It may also include dental and vision plans.

Medicare Part D

The final piece of the Medicare puzzle is Part D, which covers the cost of prescription drugs.

It includes a combination of monthly premiums and co-pays with a yearly deductible.

Understanding Medicaid

While everyone qualifies for Medicare once they reach 65—regardless of income—Medicaid is open to low-income families of all ages.

Each state has unique (and strict) requirements for Medicaid eligibility.

If you do qualify, you typically pay nothing for most healthcare services. Supplements are available for dental, vision, and prescription drug coverage.

Medicaid may also be used for long-term care funding for those who have no other way to pay for it.

Medicaid planning attorney can provide guidance and help you understand exactly what you might qualify for.

Medicare vs. Medicaid: Which Is Right For You?

In the decision of Medicare vs. Medicaid, your options depend on your personal situation and finances.

Which aspects of Medicare will you need after you turn 65? Will you qualify for Medicaid at that time, or might you already qualify for it?

The good news is you do not have to figure it out on your own.  If you are working hard to figure out the difference between the two programs, or if you qualify, we may be able to help.  Additionally, consider our Social Security disability advocacy, and estate planning services.  There is a good chance you are going to need these.

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Is Your Last Will and Testament Legally Binding?

According to a recent survey, 60% of people in the US do not have a will or a plan to make one. 

Accidents happen and you do not want to leave your loved ones with nothing. But your will must be legally binding if it is to be enforced.

You are no lawyer, though, so it can be difficult to determine whether your will is enforceable in a court of law.

Is your last will and testament legally binding? Here are 4 questions to ask yourself.

Do You Have Witnesses?

Perhaps the most important part of making your will legally binding is having witnesses. In most states, you are required to have at least 2 witnesses, while some states require 3.

Additional witness requirements include:

  • Witnesses must be disinterested parties, meaning they are not named in your will
  • Witnesses must be 18 or older
  • The lawyer who drafts your will cannot be a witness

Some states, including Massachusetts and California, allow you to invite witnesses who are named in your will. Further, some states allow you to execute a legally binding will in the complete absence of witnesses. Make sure you know what your state requires.

Are You of Sound Mind?

You must be of sound mind when you sign your will for it be enforceable by law. Being of sound mind implies that you were not coerced into creating the document. It also means that you can understand what you are signing away upon your death–and who you’re signing it away to.

Keep in mind that this requirement does not rule out individuals who currently suffer or have suffered from mental illness. As long as witnesses can attest to your lucidity during the making and signing of your will, it will be legally binding.

Have You Signed?

For your last will and testament to be legally binding, it must contain the testator’s signature. Your signature must be in your own handwriting and appear at the very end of the document. Additionally, you should date the document as the day you added your signature.

If you are physically incapable of adding your signature to your will, no worries. You can have someone else sign your will in your place. But some courts will require notarization via witnesses to prove the alternate signatory acted in good faith and with your permission.

Are You 18 or Older? 

You must be 18 or older to file a legally binding will. However, emancipated minors may file a will. Emancipation usually applies to individuals of 16 or 17 years of age and implies that you are no longer dependent on your parents. 

Other exceptions to this rule may apply to:

  • Individuals younger than 18 who are married to a partner who is 18 or older
  • Individual younger than 18 who joined the military
  • Individuals younger than 18 who are of positive net worth and own considerable assets

None of these exceptions apply to you? Then you will have to wait until you turn 18 or file for emancipation from your parents to file a legally binding will. Unless you live in Georgia or Louisiana, where you can file a will if you are under the age of 18.

Where to Make Your Last Will and Testament 

Do not want to take the risk of a last will and testament that is not legally enforceable? You need an estate planning attorney who understands your needs.

That is where Lilac City Law comes in.

Do you live in the Spokane, WA State, or Northern Idaho and need to file a will? Request a consult with Lilac City Law today to get started. 

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