More Than Half of all Older Americans Have Not Created a Will, and Their Children Could be at Risk
More than half of all American adults are at risk of dying intestate, despite widespread public attention regarding the benefits of executing a will. In the absence of a valid will, each state’s laws govern how the estate will be administered. In general, having a will should help to ensure that decedent’s wishes are honored. A will may be declared invalid in cases of suspected fraud, forgery, or coercion, but having a property executed and witnessed will may help to avoid several probate and trust administration issues.
Probate lawyers supervise the transfer of assets after an individual’s death, a legal process which could take more than two years. Even a relatively straightforward will may take more than six months to administer; in the absence of a will, local courts typically have to review the petitions of individuals who wish to be named executor, a process that could also delay the distribution and transfer of property and assets.
The creation of a revocable living trust can help with the timely distribution of assets and, like a will, can allow for the naming of a guardian for a minor child in the event of injury or death. Avoiding probate proceedings and lowering court costs are both reasons for the creation of a living trust, and in general a living trust allows an individual to take care of financial and insurance-related paperwork — “funding” the trust — in advance of their death.
Probate lawyers realize that in the event their clients forgo the creation of either a valid will or a revocable living trust, the potential exists for local courts to decide who will take over guardianship of children in the event of an unforeseen illness or death. While some individuals are reluctant to affirm their wishes in writing, having a valid will and durable power of attorney can minimize disruption to children after a parent’s death.
Although it may seem like a minor detail, people who contract with probate lawyers to arrange for the administration of their estates should be sure to include their email, social media, and banking passwords and personal access codes in the documents they produce. Spouses suddenly tasked with the administration of an estate will only have to wait longer for paperwork in the absence of passwords and PINs, and having the foresight to manage small details can make a difficult time easier to handle.
Questions to ask a probate attorney should be written down in order to ensure that all financial and guardianship issues are addressed, and understanding state and local law regarding the probate of estates or the administration of revocable living trusts can help clients ensure that their wishes are properly addressed in the event of their death. An estate that must go through probate may take several months to two years, but an estate that lacks a will completely may leave both children’s guardianship and financial details to the mercy of the court.
