The Finance Blogger


How do I Avoid Probate?

March 21st, 2018 ernie Posted in Wills No Comments »

Before we answer the question, how do I avoid probate, we should really define what probate actually is. The actual process of going through probate will vary state by state and province by province, however in general terms probate can be defined in the following way. It is a legal process that ensures that all of your debt is paid before distributing assets to your heirs. There is a probate fee associated with this process base on the size of the estate which can vary a great deal depending on the state that you live in.

Probate is all about winding up your financial affairs in a fair way that follows the instructions outlined in your will. If there is no will, the court will step in and distribute your assets, paying debts first and distributing the remainder to your heirs based on local legal requirements.

If there are insufficient funds to cover your debts, the court will develop a formula again based on local laws that will see your assets distributed in a fair manner to pay all of your debts as much as possible. Some debtors will receive penny’s on the dollar.

How Do I Avoid Probate?

Most lawyers would tell you that you should not avoid probate. The probate process ensures that everything is completed in a legal manner and funds or assets are distributed according to the instructions outline in the deceased’s will.

You can minimize the probate tax which is really the objective of most people. Assets that are jointly owned usually pass automatically to the surviving partner and do not become part of the probate process unless their share is specifically mentioned in the will.

For example, a home owned by two people is jointly shared and would pass automatically to the surviving spouse. You may still need to register a change to the deed to reflect a change in the ownership from joint ownership to single ownership.

Probate laws vary across the country. Check with your lawyer to plan your probate tax strategy and always make sure that you have a will.

For more ideas about avoiding taxes and especially probate taxes, click here.

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Do I need a lawyer for a will or can I do it myself with an online form?

January 21st, 2018 ernie Posted in Wills No Comments »

do I need a lawyerThe quick answer to do I need a lawyer for a will is no you do not always need a lawyer to prepare a will, however there are reasons why you might consider having a lawyer prepare your will for you. If your assets are complicated or you have multiple beneficiaries, then using a lawyer might make their lives and yours easier.

Even if your worried about the expense of preparing a will using a lawyer, always make sure you have one. Having a simple will is better than no will at all. At the very least your intentions are made known and your heirs will have to sort things out based on your directions. A simple will basically says everything goes to your spouse unless they die at the same time, or predecease you. In that case everything goes to your heirs as per your specific instructions which could simply be split evenly between them.

Do I Need a Lawyer for a Will?

Over 50% of consumers do not have a will. They delay and procrastinate and do not really understand what happens if you die without a will.

For a straight forward will, a lawyer will charge something in the order of $500 to $1000 and can complete it within an hour or two. You review it, sign it and they witness it. It is pretty easy.

You can also use one of the online will websites for around $100. They are also pretty straight forward. Just make sure that you use the forms that are legal for the state you live in.

More complicated wills should really have a lawyer prepare and review them. Your instructions will be clear and you will be following all tax laws etc. Homes, cars, stocks, heirlooms etc. can all be specified in the will to be dealt with as per your instructions.  With no will the courts will step in and divide the assets according to their formula which may not be what you had planned.

Finally, make sure you keep your will up to date as life changes take place. Getting married, having kids, divorce, moving, deaths in the family can all be reasons you may want to review and possibly update your will. Tell your heirs where the will is and how to find it. If you use a lawyer, they will also keep a copy. Your heirs should also be aware of the lawyer that you used.

For more information on wills, click here.

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How do I keep my heirs from having to go through probate?

September 21st, 2017 ernie Posted in Wills No Comments »

probating my willMany consumers want to avoid an estate having to go through probate. Probating my will is something that most people try to avoid by doing appropriate planning prior to their passage. They are trying to reduce the probate charges that the government will charge for the probate process. Let’s start by saying that you should take a will through probate while at the same time taking steps to minimize the cost of probate.

Why would you want to probate a will? First it is the legal process that declares to the public that someone has died and their estate is about to be closed. If there are claimants, this is the legal notice that gives them a chance to make a claim for money owed or to contest the will. While no one wants to deal with this situation, it is better to deal with it legally than face claims later on. Don’t avoid probating my will but do take steps to minimize the charges.

Probating my Will – Minimize Probate Charges

Probate charges vary depending on the location you live in. IN some locations, everything is included when calculating the probate cost. While in many locations there is a deductible with probate calculated on the remaining balance after the deductible has been included. Your challenge prior to your death is to minimize the amount of your assets that will be included in the probate calculation.

For example if you own a home it will be included in probate calculations if your spouse has passed away prior to your death. One method many people use to avoid this is to make their home jointly owned with their kids. Joint ownership items pass automatically to the remaining owner and avoid being included in probate. You can apply this approach to many assets. However there are many issues to consider.

One area of concern is with a joint ownership with someone, you need to make sure it is someone that you can trust. Not everyone can be trusted in situations like this. Money is very attractive to many people.

We strongly suggest that you discuss your options with a lawyer and your financial accountant prior to taking these steps. The first bit of data you need is to find out is the probate deductible. Perhaps you will not need to worry about probate costs at all.

 

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How do you pick an executor?

August 21st, 2017 ernie Posted in Wills No Comments »

pick an executor Last Will and TestamentOne of the main reasons many people put off making a will is that they have to chose an executor. Sure lots just do not want to think about wills and what this means. Some just do not even care, they are going to be gone anyway. Consumers who care about their families and want to make sure that everything is looked after will not only have a will, they will carefully pick an executor as well. For some picking an executor may be difficult, although the majority of people will select a younger family member who will meet whatever criteria they may have. The most important thing is to have a will and select an executor otherwise the government will step in and do it for you.

Criteria to Pick an Executor

Everyone’s situation is different and therefore not all of the criteria will apply to everyone. We have listed several criteria with a few descriptive words to clarify. It is up to the consumer to decide which is more important for them in their situation. This will guide them to making the right decision regarding picking an executor for their will. Here we go:

Someone You Can Trust – above all do you trust the person to do the right thing and carry out your wishes as indicated in the will. Will they be honest with your heirs?

Close Family Member (s) – this is the most common choice for executor and often will be shared between several. Will they work well together and will they treat other members of the family in a fair manner.

Recipient of your estate – if there is only one recipient of the estate, you may as well make that person the executor of the will. As long as they are adults then there should be no problem if they carry out their duties properly.

Proximity to your Home – an executor who does not live close to your home may have to incur some costs traveling back and forth to your home to make arrangements. These costs and possibly their time as well would be charged to the estate prior to distributing the estate.

Complexity of the Estate – complex estates with property, investments etc may require specific expertise to manage and distribute. This expertise can be hired by the executor, however they should have some idea of what to do and what makes sense.

Value of the Estate – probate may be required and a lawyer will need to file probate with the courts in any case for large estates. Large estates with a lot of investments may require someone who has the time to manage them until dissolution.

Legal issues of your Estate – if the will is contested, if their are lawsuits against the estate of the deceased etc, then someone who is familiar with these issues should be considered.

Probate requirements – small estates typically do not require probate although it does depend on where you live and the local laws governing probate. Can your executor deal with probate with the help of a lawyer?

Other – There may be other concerns that are personal in nature. Often relationships affect decisions about who will be executor as well.

Make the best decision for your situation and family. Discuss your request with the person or person you chose to ensure that they are comfortable with being executor and know in general terms where to find everything they will need.

 

 

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Seniors Without Wills

February 7th, 2011 ernie Posted in Wills No Comments »

seniors without willsSeniors without wills is a subject we have written about previously, however a recent personal situation came to our attention and we just had to post another article about this subject. It is so important to have a will and yet many people do not have a will and they really have no idea of the risks they are taking nor do they seem to care about the hardship and difficulty that they are putting their families potentially through.

Seniors Without Wills – A Personal Situation

A friend of ours who is 65 still does not have a will! He is now retired and he has a spouse and two married children, both with children of their own. Pretty typical family with the exception that neither he nor his spouse have a will and there seems to be no intention to have one prepared.

What makes matters worse is that he is beginning to display the symptoms of Alzheimer’s! He is not in any real difficulty yet, however he is very forgetful and often needs to be reminded by his wife. This man was really sharp at cards and would often be able to tell you many of the hands that were just played. Now he sometimes forgets what game he is playing and how to play many of the games. Obviously we are very concerned.

Spousal Input

His wife spoke to me about who to talk to about having a will drawn up and I provided our lawyers name and number. This was over 2 months ago and they still have not made an appointment. There is no immediate rush in terms of my friends forgetfulness, yet at age 65 and overweight, it is a good idea to have a will drawn up.

In his case, he believes that with a will prepared he is one step closer to the grave instead of making sure that his affairs are in order and that all of his assets are distributed in the manner he desires.  A living will would also give his spouse the right to manage his health when he cannot.

His spouse on the other hand, although younger is reluctant to even discuss it with her husband because of his strong feelings about them. This is a really difficult situation, since she also does not seem to be aware of investments that the couple have. Not a good situation at all.

The Basics That you Need to Think About

There is no solution really to this situation. If he does not want to prepare a will, there is nothing anyone can do about it. We will summarize the basics of a will to show just how simple and straightforward they can be:

  • Assets go to the surviving spouse
  • Assets are split between surviving spouse, children and grand children
  • Special designations are indicated
  • Trust funds although unusual for most consumers can be set up
  • Care takers for children are identified
  • Funeral and other special requirements are specified
  • Instructions regarding measures to be taken for medical care

Your lawyer will discuss all of this and any other special requirements that you may have which might differ from those above. They will prepare the will , review it with you  and then you sign it with your lawyer witnessing it. They keep a copy and you receive a copy. It is that simple and yet it makes life for your surviving relatives so much easier.

If you are in this situation, don’t wait until it is too late. It does not bring you closer to the grave. Instead it shows someone who is mature and thoughtful about life and wants to do the right thing for your family. It allows you to make sure that your spouse and children are properly looked after and special considerations are taken care of. Finally if you are part of the growing distributed family situation with ex-spouses and step children it is even more important that you have a will and that your assets are distributed in the manner you wish.

Do it now, don’t procrastinate! Comments welcome as are suggestions!

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Preparing a Will – Why Many People Avoid It

April 7th, 2010 ernie Posted in Wills No Comments »

Preparing a WillWe talked about Preparing a Will, about estate plans, selecting a lawyer, role of an executor and the type of wills that consumers can consider in some of our previous posts. This post focuses in on why many people close to us for various reasons delay the preparation of a will. If you fall into one of these categories we would really like you to reconsider and prepare a will today, to avoid additional complications for your family. We all know that a will is needed, but for some reason we just cannot get going and get it done.

You have already read some of the impacts that might occur if you do not have a will in our other posts. We will not repeat them hear, but we do urge you to read some of the posts on this web site to learn about some of the issues associated with not having a will.

There are many reasons for needing a will. They range from the desired distribution of assets to how you want your funeral to be arranged and how your personal care should be dealt with if you are disabled and you cannot make decisions for yourself.

Why do People Avoid Preparing a Will?

The reasons vary, but for most people they result in you and your family being exposed to the legal morass of not having a will. A few of the many reasons are listed here and why they might not be good reasons to delay preparation of your will : Too Young; No Dependents; Too Healthy;  Too Busy; Legal costs; Can’t decide Who Should Receive the Assets ; Can’t face the Prospect of Death

Too Young

You are never too young to have a will. Anyone can have a car accident, be involved in an altercation or have a serious health issue and find themselves in a situation where they cannot make decisions for themselves or are dead. A living will can specify how you want to be looked after and a will can dictate how your assets will be distributed.  Most people do not wake up to this situation until a close friend passes away without a will or they see how decisions are made for someone who cannot make their own decisions.  Take control of your life now and arrange for a will to be drawn up that covers both the living will aspect as well as your estate.

No Dependents

Some people feel they do not need a will since they have no dependents. They really do not care were their assets end up and how they are looked after.  Do you want your friends and family making decisions regarding your estate or some bureaucrat?  How do you want to be looked after if you are in a coma and cannot make decisions for yourself? Perhaps you want your estate to go to a cousin or brother or sister. Having a will can cover all of this and your estate is divided based on your directions.

Too Healthy

I am too healthy right now to worry about needing a will. I plan to live for another 40 years so I will deal with a will in a few years. This is a common feeling among many young healthy adults. The wake up call usually occurs when a seemingly healthy close friend or family member passes away.  Why wait, you can always change your will later in life if needed.

Too Busy

You are in the middle of your career with a challenging job, the kids are in activities after school and there are no extra minutes in your life to think about preparing a will. We have all been there, and know what it is like to not have any time for what we consider to be lower priority activities. A life changing event can change your perspective and sometimes it takes this sort of thing to refocus people on their life and what is important to them. It only takes a couple of hours with a lawyer to draw up a basic will to ensure that you and your family are protected. Don’t wait for something catastrophic to happen to trigger the preparation of a will, do it now.

Legal costs

The legal costs can be an issue for many people living on a small income or without any extra funds to spend on what might be considered a low priority. Like insurance, a will is for something that may occur in the future. At the very least prepare a will using one of the online versions that are available. Save it and store it were members of your family can find it. Most important tell your family members that you have prepared a will. Meeting with a lawyer is always best and a basic will can often be prepared for a few hundred dollars. A lawyer will ensure that the proper language is considered and all aspects are looked after.

Can’t decide Who Should Receive the Assets

This can be an issue, especially for some parents or people without any direct heirs to their estate. The worst situation is to die intestate (without a will) and the government decides for you who should receive the assets. You can always change the will later in life. Have a will prepared now that deals with both the living will aspect as well as the estate distribution, then change it later if your life changes or if your personal situation changes.

Can’t face the Prospect of Death

Some of us do not want to even think about the prospect of our own death. We are young, healthy and immortal, so why would we ever need a will? This feeling is pretty typical of younger people and even middle age people. Unfortunately reality hits when we get sick or a close family member finds themselves in a situation that would have been greatly improved had they prepared a proper will.

We cannot predict life events. We cannot predict what will happen to us as we go about our daily activities. Preparing a will is a relatively simple thing to do and you can change it at any time should circumstances in your life change. Make arrangements now. Don’t wait until it is too late!

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Will Execution & Conflict

February 7th, 2010 ernie Posted in Wills No Comments »

Will Execution & ConflictOnce a person has passed away, there are various activities that need to take place to ensure that all of the wishes of the deceased and the family are dealt with. There is a funeral to arrange, notification of family members, assignment of an executor to manage the estate. They need to arrange to continue payment of all bills including utilities while the estate is being wound up. All of this needs to be done in stages during a time when everyone is stressed out and grieving for a family member who has passed away. The potential for conflict and generating bad feelings among family members is high.

Will Execution & Conflict : Dealing with Grief and Stress

Most people really just want to deal with their grief and do not want to focus on more business like issues such as reading the will and looking after assets such as homes and cars. However it can be important to deal with these sorts of things quickly. Houses must be maintained. If there is a business that needs to be kept going and people depending on the business for their jobs, they also need to know what is happening. At the least make an assessment of those items that need a decision and action immediately and those that can wait a few days or weeks before attention is required.

Keeping a level head in these situations and not allowing the stress of the situation get the best of you is so important. Some times discussions can become heated and cause family rifts when there is really no need. Agree to disagree, and take some time to cool off so you can deal with the situation in a more level headed business like manner.

Reading of the Will

The will should be read fairly soon for most situations. This can occur immediately after the funeral especially if there has been good communications with the family ahead of time so that there are no surprises. If there are urgent reasons such as tissue donations, family members traveling, business decisions that need to be addressed, the will may need to be read more quickly prior to the funeral being completed. Someone should peruse the will to determine if there are any instructions in the will regarding the funeral arrangements.

For some, the reading of the will, will be a tense situation. You are crowded into the lawyer’s office or conference room, you are still grieving and there may be some surprises or conflict that you really just do not want to deal with. Spouses of surviving children sometimes also insert themselves into the situation, which is not always the best idea when tension is high.

Unfortunately there is just no way of getting around this step. It must be done and all family members that are mentioned in the will should be in attendance. Typically what happens is that the lawyer will read the will, answer any questions and discuss the steps that need to be taken to execute the will. Everyone should receive a copy of the will and if necessary the death certificate. The executor will be assigned as per the will. Some people ask for more than one executor which is a great idea in many ways, but also is a potential area of conflict if there are disagreements about how the estate should be handled.

Will Execution & Conflict

We have reviewed in another post the duties of the executor in executing the will and the areas that he or she needs to pay attention to. One area that we did not discuss is the personal issues and the management of the relationships among the various family members.

Essentially communications and lots of it are the best approach, however an executor needs to remember that family members deal with grief as well as stress in various ways. Some will handle their grief well, were others will not and react in an emotional manner. The executors role is to manage the closing of the estate and were needed the management of family members who may not totally agree with the will or the way the estate is  being managed. This latter activity is only to allow you to move ahead, finalize the estate and close it as per the instructions in the will.

Generating conflict and creating tension is self defeating and usually ends up costing everyone more money. As an executor all of your actions will come under scrutiny and you may even be called on to produce records of the activities that you have undertaken. This is standard and if you are up front about it, then there should be no problem. Always be prepared to support any decisions you have taken and the reasons why.

Dealing with Conflict

Some recipients of the estate may be jealous of the fact that you are executor, some may feel that you are mot moving quickly enough, some may feel that the will was wrong or not clear enough. Regardless of what is driving the conflict, an executor should call family meetings to discuss the status and provide clarifications regarding the will or the actions they have taken. In some cases you may also require clarification from you lawyer if a legal issue is involved.

Always deal up front and be clear about your intentions. Always take notes and seek agreement to any area of conflict once it has been fully discussed. Everyone will feel better if their concerns have been heard and discussed. They may not be always happy with the answer, however they at least have an answer and understand how it was arrived at. Communicate and communicate some more is the mantra for dealing with  conflict.

In summary, there will be some conflict in every family. Always try to take the high road and ask the question, “How would dad or mom want this handled?” don’t sweat the small stuff!

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Wills and Family Conflict

January 30th, 2010 ernie Posted in Wills No Comments »

Wills and Family ConflictIt is surprising just how much conflict is generated over a will both before someone passes away and after. Families seem to get tied in knots over various issues. All it does is cause bad feelings and / or lost money because it gets tied up in the courts. Wills and family conflict are actually quite common.

The only ones who win in this situation are the lawyers. First we will deal with issues that seem to come up during will preparation and prior to the person preparing the will becoming deceased. Then we will discuss some of the conflict that is generated after the will is read and executed by the executor in the next post.

Wills and Family Conflict – Family Situations

The simplest case is a situation were the husband wife are planning to pass along their assets to their children. Normally this should be straight forward, however many times it is not. Throughout we will recommend strong communication with all parties. In most cases it is lack of communication and understanding of the participants. Most parents will divide out their assets equally to all surviving children. This tends to be the fairest way to do the distribution and avoid hurt feelings among the children.

Occasionally there will also be one child who has special needs that the parent has been providing for. Parents may ask for special arrangement to be taken to provide support for this child. As a result this child might receive a higher proportionate share of the assets. The value of doing this is it will ensure a better quality of life for someone who cannot take care of themselves, and it also decrease the support required by the remaining children which can be significant in some situations.

There may be some competition between the children regarding heirlooms or there may be a misunderstanding regarding who was to receive a particular item. Open discussion, even negotiation between participants usually works well. Sometimes the parents are uncomfortable with this activity. They feel that the children have them one step from the grave and are waiting to pick over what is left. This is just not the case in the vast majority of situations. Our answer to this is would you not prefer to see that your most prized possessions continue to be prized by someone and that the right person received it. You can derive a lot of pleasure by bequeathing heirlooms in your will to someone who will take great care of the family heirloom.

Having open discussions and even going as far as to put tags on items or creating a list of all items that you care about with the name of the recipient will help to resolve many areas of conflict. Discuss the list with your children so they know what to expect.

The Other Spouse

Another area causing a lot of concern is the new spouse. As children you have had to deal with the grief of losing a mother or father, then your surviving parent decides to remarry. We have all heard the horror stories were the new will is read, everything goes to the surviving spouse, which is the step parent and nothing to the children. Before you know it many of the treasured memento’s are finding their way to the step parents children or are being sold without any consultation to the original family members.

Open and honest conversation, although difficult is often the best approach to take. Sometimes it needs to be completed carefully and over a period of time to avoid ruffling feathers and causing more conflict. However if you have not had this conversation prior to a new will being drawn up, then you will likely be surprised.

New Will

If a spouse remarries, the previous will is usually null and invalid in many jurisdictions. This may come as a surprise to many people however this is just the way it is done. A new will needs to be written for all of the same reasons that the original was put together. The new will should take into account the needs of the new spouse as well as the needs of children of both souses.

Support for the remaining spouse is a discussion item that should also be considered. No one wants any body to experience any hard ship, while at the same time you do not want anyone to lose their families treasures. We recommend that the new will be created and discussed with all parties so there are no surprises and there is an opportunity to make adjustments if warranted.

A word of caution is warranted. We are suggesting lots of discussion, even negotiation with regards to the new will and the family members. The best approach is for all family members all to have input to the will preparation, however it is the owner of the will that has the final say with what goes into the will, how it is written, when it is written and how the assets of the state will be distributed. At the end of the day, you may not be totally happy with this approach, but that is and has to be the final way it is done.

Preparing a legal document as important as a will should be completed carefully and accurately. A will after all will communicate how you want your estate wound up and who should receive your assets. Take the time to do it right, try to avoid emotional decisions and try to be fair to all parties. Sometimes a will is used as a weapon from the grave. All it does is cause further grief and anger and most people end up thinking even less of the individual after they have passed away than they did when they were alive.

Our next post is going to discuss family conflict after the will is read and what you can do to deal with this situation.

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Role of an Executor

January 25th, 2010 ernie Posted in Wills 1 Comment »

Role of an ExecutorThe role of an executor can be very simple and straight forward for most people, however the more assets there are and different types of assets the more complex it can be. Disposing of homes, rental properties, investments and heirlooms all take different and special skills. In most cases, the executor is a family member who will work with the family lawyer and the rest of the family to carry out the instructions listed in the will. The duties of the executor can be divided into several categories.

Initial considerations for the Role of an Executor

Along with other family members, advise all relatives and then locate and examine the last will. Time may be of the essence, if there is an intention to donate human tissues. Also the executor should begin making decisions regarding the funeral arrangements as required by the instructions in the will and the needs of the family. A family meeting with the lawyer is usually arranged were the will is officially read and the instructions given to the executor (s).

There are a number of things such as dealing with the post office to re-direct mail, advising all family members and people mentioned in the will, and taking steps as required to protect any assets that now belong to the estate. These can include cash, securities, jewelery, deeds and insurance policies.

Executors should also confirm that there is adequate insurance on homes and cars, and that the appropriate supervision of these assets is put in place. If there is a business involved, the executor should oversee the continuation of the business and determine what is required to continue the business on good footing.

The next step is really to prepare for distribution of the assets, but first you must determine what the assets are.

Determination of Estate Assets

The role of an executor includes meeting with the banks and other financial institutions were assets are located. You may need a copy of the will naming you as the executor of the will before they will allow you access to any accounts or safety deposit boxes. Most organizations will make this request and they may also request a copy of the death certificate.

Keep notes on everything and  a diary is probably a good idea to keep everything organized. Date all entries in your diary and document all decisions, who was involved and any concerns or dissensions from the decision.

Make a list of all assets: bank accounts , insurance policies, household contents, personal effects, etc. The executor will also need to list employee benefits, outstanding salary, death benefits, group insurance, pension entitlement, medial and other health insurance benefits. Filings for the CPP benefit if you are in Canada.

The executor must also inspect and obtain professional valuations of any real estate, leases, mortgages, taxes, and businesses owned by the deceased. In some cases you may need three assessments and then average them to obtain the final price.

Dealing with the Court

The lawyer retained by the deceased will assist in this area, however the executor is responsible for overseeing this activity. Depending on the country of residence, you may need to provide the lawyer with copies of the inventory and the value of the inventory. This value will be used to calculate estate taxes and other fee’s. The legal fee’s may be a fixed amount or it may be a percentage of the assets, It is important to establish this up front with the lawyer to understand what your obligation is in this area from an estate perspective.

Realization of Assets

All cash should be deposited to an estate account to be drawn upon as needed. Assemble bonds, stocks and similar investments and arrange for sale to convert them into cash. Real estate should be turned over to family members as instructed by the will, otherwise you will need to make arrangements for the real estate to be sold. Collect rents  as well and deposit in the estate accounts.  Insurance claims should be claimed after providing all necessary documentation.

Tax Filing and Executors Role

In many countries there are several tax filings required. First,  tax filing should be filed for the last year prior to death up to the date of death. Secondly once the estate is wrapped up an estate tax filing is also required. If it takes several years before all assets are distributed, there may be multi year estate tax filings required.

Finally after all tax statements are filed, the executor should also request a tax clearance certificate. The tax clearance certificate will provide a release from the government that all taxes have been paid and the executor is free to distribute the remaining assets to the beneficiaries of the will.

Role of an Executor and a Caution

If the assets are large, sometimes family members are in a hurry to receive their portion of the assets. There are lots of reasons for this, so we will just mention that this occurs. The Executor is responsible for ensuring that not only are the assets distributed according to the will, but also that all of the taxes have been paid. If the additional taxes are owed or there are unforeseen expenses, the executor is responsible to see that they are paid.

Sometimes an executor will pay out all of the funds, only to have to request some of the funds to be returned to pay final bills and taxes owed by the deceased. Far better to hold money back, pay the bills and then pay out all final assets to the beneficiaries. The beneficiaries may have spent the money, they may have used the funds to pay off their own debts or they may have made investments that make it difficult for them to pay their fair share of the remaining bills. This situation can create a lot of tension and discourse.  Better to deal with it by avoiding the situation in the first place.

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Preparing a Living Will

January 20th, 2010 ernie Posted in Wills 1 Comment »

Preparing a Living WillYou have probably heard of wills and have some idea of what a will is, but what on earth is a living will? It is actually a very important document that goes along with your regular will and should be prepared for everyone. Preparing a Living Will is part and parcel to preparing  a regular will.

A living will is a will that provides someone you trust with the authority to look after your affairs while you are still alive and you cannot or are unable to make your own decisions. Living wills can provide a great deal of authority to someone or they can be specifically limited in the power they give to your living will executors. There are two fundamental areas that need to be discussed. One is about making decisions concerning your personal care when you can no longer make those decisions on your own. The other element is all about managing your assets at a time when you cannot make decisions or have got to the point were you would prefer someone else make those complex decisions for you. Both have specific requirements and we will discuss them next.

Preparing a Living Will – Legal Advice

At this point we need to emphasize that the writer is not a lawyer and even if they were, we would still strongly recommend that you consult a lawyer in the city or town were you live. Every country and state will have different legal rules about what can be allowed so it is best to consult with the experts.

Preparing a living will for Personal Care

A personal care living will is all about giving someone specific instructions regarding how you want to be looked after when you are too sick to do so yourself. Perhaps you have had a stroke and need 24 hour care. Who will make the decisions regarding your care? Who will decide were you live? How much money should they spend?Who will decide whether you should be resuscitated or not? What instructions do you want to give your living will executors?

These are the kind of decisions that someone will be faced with and it is often better that you provide clear instructions regarding what you want done and not leave people guessing when time is critical. The doctors will usually turn to the family. It is a good idea that everyone should communicate with their family members what they would like in this area to avoid any conflict at time when stress is already very high

The best approach is always to over communicate so that there is no doubt left in anyone’s mind. Work with your lawyer to decide what you would like and then give copies to your living will executor and other family members as you see fit.

Preparing a living will for Managing Your Assets

Most people have bank accounts, homes that they live in and bills that they have to pay. Most lenders and utilities, even tax collectors will give you some amount of time to resolve issues, but eventually they all want to get paid. An executor for assets for a living will make sure that all of these bills are paid, taxes filed and all of the usual things we need to manage our normal financial life.

If you are paying someone’s bill most firms and cities will gladly accept your check if it is signed by you and the money is drawn from your account. They will not accept a check signed by someone other than the owner of the account unless you can show you have the authority to do so. A living will is just the instrument that allows this to occur.

Your lawyer will draw up a living will and will stamp it properly and witness it so that it becomes a legal document. When the conditions are such that your executor must step in, your lawyer will provide a copy to the executor who can then use this document in dealing with the banks and other agencies. The banks will want to take a copy of the will for their records before they will give you signing authority to the account of the person you are executor for.

Once you have been given authority, you have the same power over these accounts as if they were your own. The executor has a great deal of responsibility. He or she is managing someone else’s life and must do so in a professional and honest manner. Failing to do so can lead to jail time if there is actual fraud involved.

Duties of a Living Will Executor

The executor must ensure that all bills are paid, file tax reports  as needed and to ensure that the assets of the individual they are looking after are sufficient to provide the proper care for the person that they desire.

This can be a difficult job, especially if there is insufficient funds to handle all of the bills. Use the clients lawyer as a resource and also relatives to assist in the work and the support as needed.

When do the Duties of the Living Will Executor End?

Often the living will executor and the executor of the will after the person has passed away are the same person. However officially the duties of the living will executor end the moment the person passes away and the duties of the will’s executor begin once the will has been read by the lawyer at a meeting convened by the lawyer for the deceased.

Sometimes family members will help to make this happen, however nothing can be done until the will is read in front of the family and the executor assumes his duties. This is an important step that must be executed rapidly since the executor will be asked to make funeral arrangements and the family needs to know if sufficient funds exist to pay all of the fees associated with the funeral.

Finally if you have any questions in this area, consult your lawyer. They understand the local laws and will be able to guide you along. Of course there is always a charge for these services, but sometimes it is just better to do it right the first time and avoid potential costly mistakes and family conflict.

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Preparing a Will

January 15th, 2010 ernie Posted in Wills No Comments »

Prepare a WillMany people do not have time to prepare a will and it can cause a great many problems. Sometimes even discourse and hardship for those left behind if there is not a proper will prepared.  For starters, you have not said how you want your estate divided among your heirs. Sometimes one person may feel that they are somehow more entitled than another.

Or perhaps you had a conversation with one person about what they would receive upon your demise, but no one else. Once you are gone there is no one around to back up the claim . They look like they are money grabbers or worse. Preparing a Will is relatively easy and solves so many problems.

The steps to prepare a will for most people is a pretty straight forward affair, however we still seem to resist the notion of writing a will. Perhaps it is because we are admitting to ourselves that maybe we are not immortal after all. That maybe we will only live for a set number of years.

Of course we are young and will be around for a long time, so why do we need a will? Wills are only for old people or people with lots of money. So you put it off and before you know it, it is too late. We are too old and cannot think straight or we are in the grave.

Prepare a Will – It is about keeping your life Organized.

Why not make life simple ? If you prepare a will does it not mean you will die tomorrow. It does not mean that you have to give up any rights. Preparing a will just means that you have organized your life and are going to make sure that your loves are looked after and that those items you treasure most are given to the right person.

It does not mean that you need to give them these things now, just that will receive them sometime. Of course there is another school of thought that suggest that you should bequeath items of sentimental value while you are alive and well enough to enjoy the pleasure you give to people.

So what do you need to know to make a will? The lawyer will handle all of the legal stuff and make sure that your will be handled in a professional manner. In addition they will make sure that your will is properly witnessed and sealed so that when it comes time to read it and make decisions, the court will fully accept the will.

This is an important step. We have all heard of wills being challenged, usually when there is a lot of money involved. This is your lawyers job, to make sure that it is iron clad and cannot be challenged.

What are the Main Steps?

The main step for most people is the toughest. That is deciding who will  actually receive your assets, how much, and how it will be distributed. In our family we believe that everyone should receive an equal amount regardless of need.

We want our kids to remember us as being fair. But that is just us. Not everyone feels that way and it is up to you to state this clearly in your will. You also need to decide will be the executor.

The executor has an important role in executing your will. Depending on the complexity and the size of the estate this can be a time consuming job or fairly straight forward. Regardless of how much work, it is important that you select someone who you can count on do follow your instructions. They should make good decisions in situations were your instructions are not totally clear.

Once you have decided on your executor or executor’s because some people feel that having two will make the work easier and protect your heirs better, it is time to decide on who gets what. This is the really tough part.

There are some specific things that may be considered family heirlooms that need to be clearly stated regarding who is to receive them. It gets difficult if these are personal items and have a lot of sentimental value. Better for you to decide who they will go to than to have your sons and daughters fight over them after you have passed away. All you need to do is prepare a will.

Once you get through the specific stuff, the rest is relatively easy. Most people will advise their executor to sell the assets. They they will divide up the proceeds according to your instructions. Depending on the size of the estate and the time it takes the executor may charge a fee for this service. Most people just want to recover their costs.

What Happens if You do not have a Will

Well the answer to that question will depend on what country, state or province you live in. Many have a variety of laws to handle these situations. However you can rest assured that someone who is not a family member will get to make the decisions regarding who will receive your assets. They will also charge a fee for this service.

Your local government may also charge a fee for overseeing the entire thing. No one will receive what they wanted. They will tend to receive less, your most personal things will be given out by someone else and most of all, no one will be happy.

If you have concerns in this area, your lawyer can fill you in on the details for were you live and tell you what you can expect to happen.

There is another subject which we will deal with in another post and that is a living will. This is a will which tells your caregivers how you want to be treated when you are too sick to make your own decisions.

In summary, prepare a will, and decide who will be your executor ( ‘s). Who will receive your family heirlooms and how the rest of your assets will be distributed after all bills are paid.

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