When you visit an attorney for any reason, you should understand the fact that there is an attorney-client privilege. Anything that you say stays between you and your attorney, so if you have any secrets as it were, you should not be reluctant to share them with your attorney if they are relevant.
With this in mind, you have to consider the possibility of a challenge to your estate being presented by someone who could be described as a long-lost relative. This could be someone that you have intentionally disinherited and/or disowned, or it could be someone that simply have not seen or heard from in many years.
Some people have children that their families are not aware of, and this would certainly be something you should share with your lawyer as you are planning your estate.
The actor Sherman Hemsley passed away a number of years ago. He left everything to his close friend and confidant Flora Enchinton because he was unmarried, he had no children, and he was not close to any of his relatives.
However, a man that turned out to be his half-brother came along to challenge the estate. This slowed everything to a standstill for a number of months, though ultimately, his challenge was rebuffed by a probate court judge in El Paso, Texas.
It is important to be forthcoming with your estate planning attorney so that he or she can take all of the necessary steps to make a successful challenge to your estate unlikely. If there are surprises later on, your family may wind up paying the price.
The primary reason why estate planning attorneys advise clients to execute a last will is to avoid intestacy. If you die without stating your final wishes in a last will or trust, your assets will be subject to distribution via intestate succession rules.
Under these circumstances, your assets may not be distributed in accordance with your true wishes, and the estate could be stalled in probate for a considerable amount of time.
There is another thing to take into consideration when you are going through life without a last will. What if someone was to draw one up on your behalf and sign your name to it after you pass away?
There is was such a case in Grundy County, Tennessee. After hearing the case that was made by the Tennessee Bureau of Investigation, a grand jury indicted a man who allegedly forged a last will and attributed it to his deceased father. He faced not one, but three counts. In addition to the charge of forgery, he was charged with criminal conspiracy to commit theft in excess of $250,000 along with a charge of passing a forged instrument.
This type of case may be rare, but as you can see, there are those who will go to extraordinary lengths to get what they want. To be certain that your assets are distributed in accordance with your wishes, you would do well to execute the appropriate documents with the assistance of a licensed estate planning attorney.
Beware of DIY Wills and Trusts
You may be someone who likes to undertake DIY projects. Since there are online tools that you can purchase to create your own last will, you may decide that you are going to simply create a will and eschew any additional estate planning efforts.
In fact, before you do this, you may want to ask yourself if a last will is enough.
First of all, a last will may not be your best choice for transferring assets to your loved ones. When you use a will to direct future asset transfers, the estate must be probated. Why is this a problem? Probate can get lengthy, taking months, or even years in complicated cases. In addition to this, there are costs that go along with the probate process, and they can add up considerably.
Using a trust such as a revocable living trust may be a better option, because this type of trust would enable asset transfers outside of probate. There other types of trusts that can provide tax efficiency and/or asset protection benefits.
In addition to the financial side of things, you should consider the eventualities of aging. Once you reach an advanced age, it becomes quite possible that you could suffer from some form of incapacity. A will does not provide a way to appoint anyone to make decisions in your behalf should you become incapacitated. This is achieved through the execution of durable powers of attorney.
The best way to plan for the future is to sit down and discuss everything with a licensed estate planning lawyer. If you make assumptions and try to do things for yourself, you may be taking missteps that ultimately have unintended negative consequences.
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