What You Must Know About Wills
Wills have existed for millennia and still form the foundation of estate planning. As the most basic estate planning device you can have, they still require two witnesses and, in order to go uncontested should have either a self-proving affidavit or be notarized. Wills can establish what happens to your property after you pass, who should take over guardianship of your children, who would serve as a financial or health care proxy if you were to become incapacitated and more. In other words, it’s important to have one or you end up leaving these important decisions to chance. Our dedicated Rochester Hills wills attorney is ready to help you. The Rochester Hills Wills attorney at Sumner & Associates P.C. can help you draft a legally binding will that will hold up to efforts to contest it in a court of law.
We can also help you understand other estate planning tools that are available to you and the pros and cons of using these to distribute your assets rather than allowing them to pass through probate.
Do I Need a Will?
If you are over the age of 18, and you have property that you want to leave to someone in particular, you need a will. Regardless of the size of your estate, it is critical that you have at least a simple will. By executing a valid will, you will have control over who gets your property and in what proportions, who will manage your affairs as executor, and who will serve as the guardian of your minor children, if you have children.
Additionally, having a health care proxy in the event that you are no longer able to make decisions for yourself is an excellent idea. You can also establish what happens if you are required to be kept alive on life support and other important decisions.
What Happens If I Die Without a Will?
Without a Will, state law determines how your assets will be distributed. The State’s default plan for you could conflict with your wishes to benefit your parents, brothers, sisters and/or grandchildren. That plan could also conflict with your wishes to donate to a charity or provide
for your partner or friend. Additionally, without a will, you lose control over who is responsible for managing your estate; the Court will appoint an “administrator” to serve as executor. Finally, without a will, it is more costly to administer your estate; that’s because state law requires that your administrator purchase a surety bond, which is paid out of assets of the estate. A will typically waives the surety bond, thereby saving money.
If you die without a will, your assets still pass through probate and are still distributed to your heirs but, instead of being distributed according to your wishes, they pass through a process known as intestate succession. Intestate succession is basically an algorithm which divides your assets and apportions them to certain family members. Generally speaking, any living spouse would get first dibs on the assets left behind with children, parents, and brothers and sisters making up the rest.
Worse, those who have children or dependants will leave behind legal battles to determine where they will reside.
Is Probate Avoided With a Will?
No. A will guarantees probate. Probate can only be avoided through the use of a living trust. A living trust is executed upon the moment of your death. Essentially, you sign property over to the trust and then this property passes directly to an heir who is named by the trust. This avoids probate completely.
When a will is executed, the first thing to happen is that all of the deceased’s creditors are called. The debts are settled out of any assets owned by your estate. While creditors can still sue a trust in your name, it is much more difficult, time-consuming, and costly for them to sue the trust. The court, however, makes it very easy for creditors to extract wealth from your property in order to repay debts when those assets pass through probate. A trust makes it more difficult. While some property transfers are a matter of public record (like real estate) most assets do not require title changes to be a matter of public scrutiny.
Another key feature of the trust is that your heirs will get their inheritance much quicker than they would if your entire estate passed through probate. For those with high-value estates or assets that they want to ensure make it to the right person, a living trust is an excellent estate planning option. You will, however, still require a will.
Besides a Will, What Else Do I Need?
When you establish your will, it is important to also execute a Power of Attorney for Property and a Power of Attorney for Health Care. You also might want to sign a Living Will. Finally, if you want your estate to bypass the probate process, you should execute a trust at the same time you execute your will.
During your initial consultation, our estate planning attorneys will advise you of your estate planning options and create a plan that is tailored to your individual needs. If you decide that a custom will-based plan is best for your planning goals, you will be provided all of the following documents and services for a guaranteed flat-rate fee:
- Durable Power of Attorney for Property,
- Power of Attorney for Health Care,
- Living Will,
- Necessary Consultations and Attorney Letters,
- Meeting to Review First Drafts,
- One Revision of First Drafts,
- Signing Ceremony,
- Estate Organizer, and
- Clear Instructions for Wrapping Up the Planning Process.
Living Wills and Power of Attorney
If you are no longer able to make health care decisions on your own behalf, you can assign someone close to you durable power of attorney. This individual can make key decisions for you based on their understanding of your wishes. In Michigan, this is technically known as a patient advocate designation.
This is different than a living will. A living will is established to determine what happens if you should require resuscitation or extended life support. It can, in fact, establish what kinds of treatment you receive in specific situations. While Michigan has no specific statute authorizing living wills, living wills are protected by federal law and give your patient advocate a clearer idea of what sorts of treatment you do and do not want. A patient advocate may not override the conditions and stipulations set forth in a living will.
How Sumner & Associates P.C. Can Help
When you meet with us, we will discuss your situation, your options, and provide you with the necessary paperwork to establish a legally valid will. As part of our services, we can advise you on options related to irrevocable and revocable living trusts. These trusts are designed to hold assets that you control. They can also be used for retirement planning purposes. Trusts are an excellent option for those who want to protect their assets or bypass the probate process.
Additionally, we can help you establish a living will to determine your health care options if you require life support to sustain you, establish hospice care, or set up a durable power of attorney as a health care proxy. Durable power of attorney can also be set up for financial choices.
Talk to a Rochester Hills MI Wills Attorney Today
Our dedicated Rochester Hills wills attorney is ready to help you. Contact us today.