Friday, October 7, 2011

Drafting Your Will: The Devil is in the Details

When putting your will together, going in to detail is the only way to truly insure your intent, protect your estate and prevent a hardships for your family and chosen executor. The market place is full of options for putting together a will such as forms from office supply stores, software packages and even online solutions. Most of these forms are legally sufficient and will accomplish your basic intent, so long as that intent is very basic. Many people make the mistake of believing that there estate is too simple to warrant a will with any detail. Most people figure that their executor is knowledgeable about their intentions and can carry them out.

The problem is that once a person dies, each heir has their own idea as to what deceased would have wanted. Much of your personal property will have some sort of significance to your relatives. Many times, the death of a loved one brings out the worst in people and relatives will squabble over the division of every stick of furniture in the house and every dime of the estate. These relatives will challenge your chosen executor every step of the way. Since the estate has to satisfy the fees of the executor as well as the legal expenses. If the will merely provides that the estate is to be divided between the heirs, then the executor may end up having no choice but to sell every item and split the cash.

Here are some ways to try to litigation-proof your will:

  1. Choose a good executor: Your executor needs to have good head for business. While it may hurt some feeling of your relatives for not being chosen, the executor will be called on to make some very important business decisions in disposing your estate. This person also needs to be able to stand up to all of your heirs to make sure your written intent is carried out. This person needs to have the strength and stamina to decide when to go to court or how to best settle your estate. Further, resist the temptation to name more than one person as executor. It is nearly impossible to manage by committee and the same holds true for an estate. While it might seem diplomatic to spread the power out amongst the heirs, if they cannot agree on how to handle the estate, the legal battles that will ensue between them can drain the estate before it is even divided.
  2. Carefully select a guardian for your minor children: The person you name in your will is the person who may very well raise your children. If you do not select a guardian one may very well be decided by the State or the Courts. The person you select should be willing and capable of raising your children the way you would like to see them raised. Do you want your children to go to college, do you want them to be nurtured in the arts. Make sure your guardian is somebody who will insure your wishes. Make sure your guardian is willing to insure your children have a relationship with their entire family. The death of a parent is a huge loss for a child at any age, but the loss of the rest of the family can only serve to compound the problem.
  3. Set up trusts: Under Georgia law, assets left to minors must be placed in a trust or a conservatorship. While the law does provide some direction as to how those assets are to be used before the child reaches the age of majority, those directions are broad and do not take into account what the minor will be able to do with the assets when they reach the age of eighteen. Most eighteen year olds are not equipped to handle large sums of money or assets. However, with a carefully drawn trust, you can direct how the money is to be used and when, if at all the money is to be disbursed. With careful drafting of the trust, you can insure that your wishes are carried out with specificity. Furthermore, trusts are not just for minors but can be set up for persons who are not wise with money or even to shelter heirs from other consequences.
  4. Make specific bequeaths and devises: Do not trust your executor to make sure that your personal property and real property is going to get into the hands you want to see it go. The best way to insure that happens is to put it in your will. Making a list is not enough, even with the best intentioned executor. If the list is not a part of the will, then it is not legally enforceable. If the heirs end up in a dispute, the Probate Court may have no other choice but to order all of the property sold.

The most important thing is that a will should be a specific document that clearly spells out your desires with regard to your estate. The best way to do this is to sit down with a lawyer who is trained and experienced in not only drafting wills but has handled disputed estate cases. An experienced lawyer can point out the possibilities of problems and can lead you to draft a will that will insure your intent is carried out and prevent your heirs form having anything to dispute.

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