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How do I know if I need a will or trust?
This is one of the most common questions that comes up when planning your estate. They accomplish many of the same things, but a Last Will often has to go through the probate process, while a fully funded living trust avoids probate. But a last will is easy to create, while transferring your assets into a trust can be time consuming and require additional paperwork. However, we know that this simplified explanation is often not enough to help make this difficult decision. It's for that reason that our Estate Plan Bundle comes with a full year of our Personal Legal Plan. You can purchase the bundle, and immediately schedule a consultation with an attorney licensed in your state to help you make this decision. Many people have to decide based on their unique personal factors (state laws, family situation, size of estate etc...), and the help of an attorney is invaluable to fully explore those details.
What makes a will legally binding?
Last Wills will be not admitted by a court unless the following criteria are met:
• You must be of sound mind.
• You must be acting of your own free will without undue influence or duress from others.
• The will must be in writing and signed and witnessed according to the applicable laws of your state.
What is probate?
Probate is the legal process through which the court decides how an estate will be divided. The court will look to your last will to decide how to distribute your property and will follow the will, unless it is successfully contested by your heirs.
Generally, if an estate includes real property, a formal probate action is required. However, in many states, if the estate is of minimal value or consists solely of personal property, probate is not required and other legal remedies are available.
Can I disinherit someone?
You can leave anyone out of your last will, subject to certain limitations, but many laws have been enacted to protect spouses and minor children. If you wish to disinherit one of your children or to give one child less than another, you should clearly state that intention in your last will and discuss this matter with an attorney.For more information, read the section "Marriage, Divorce, and Children" in the "Wills Law Library," or call one of our specialists for general information.
What happens to my debts after I die?
The general rule is that all debts must be paid before any assets are distributed. Your outstanding credit card balances, for instance, are usually paid before any money or gifts are distributed to your heirs.
An exception to this general rule is for "secured debts," that is, debts that allow the lender to take possession of a specific piece of property if the debt is not repaid. Examples of such secured debts are mortgages or auto loans. If a piece of property is collateral for a secured debt, that property can be distributed, but the debt will generally go with it. For instance, say you have a car worth $10,000 and a loan on the car of $5,000. You can leave the car to someone in your will, but it will be that person's obligation to pay off the loan.
What happens if you owe more than you own? In general, people cannot inherit another person's debts. If there is not enough cash in the estate to pay debts, all property of the estate will be sold to pay the debts and no one will inherit anything. For example, if someone dies owing $12,000 in credit card debt, but has cash and property worth only $10,000, the property will be sold and the $10,000 will be paid to the credit card issuer.