Answers to Frequently Asked Last Will and Testament Questions
The answer to this question depends on which state and county the Donor (the person making the Trust) or the Maker (the person creating a Will) resides.
In the vast majority of states, a Living Trust and/or a Last Will and Testament do NOT need to be registered or filed while the Donor or Maker is alive.
Let’s use an example of a husband and wife who do not “mix finances”. The wife owns the house solely in her name, and the husband has a business solely in his name with debts both personal and under the business. They carefully keep completely separate bank accounts, credit card accounts, etc.
Upon death, the expenses owed by the decedent (i.e. the person who has died) are usually due and owing to creditors by that person\’s estate.
The Executrix of the decedent\’s Last Will & Testament usually opens a probate case to administer the decedent\’s estate, in an effort to settle all creditor debts and to distribute the assets per the terms of the Will.
If there are positive assets of value belonging to the decedent at the time of death, creditors of the decedent can usually make a claim for payment of expenses against the assets of the estate.
A ‘will contest’ is the process by which someone, usually a family member of the person who died or a beneficiary listed in a Will, challenges the validity of a Will.
Generally, the legal grounds for such a ‘will contest’ include claims that the Will document was improperly signed, the testator (the person making the Will) was incompetent or lacked the proper testamentary capacity (e.g., he or she did not understand what he or she was doing), that the Will document contains a serious mistake, or that the signing of the Will document was the result of fraud, undue influence, or duress.
There is a time limit for filing a ‘will contest,’ and that the time frames vary from state to state.
Standard Legal’s Last Will and Testament legal forms software provides for a suggestion of guardianship for children. While Probate or Family Courts make the final decisions regarding guardianship of minor children when the death of a parent occurs, wishes expressed in a Last Will & Testament carry great weight with these courts and are usually … Read more
Certainly! So long as the Will is created to follow the laws of a particular state, and so long as the Will will be probated in that state, the current residency of the makers of the Will is not relevant. See complete details on Standard Legal’s Last Will and Testament legal forms software here.
Upon the death of a person who has made a Will, the probate process must be initiated.
Most commonly, a person who has made a Will has chosen a close family member to act as Executor or Executrix — this is the person that assists and oversees the administration of the deceased person\’s probate estate.
The Executor is usually empowered to submit the Will to the probate court or hire an attorney to oversee the probate process.
Sometimes items listed for distribution within a Will are designated to specific beneficiaries, but are sold, lost or given away prior to the death of the maker of the Will. And in some cases, those items were to be distributed specifically to a named beneficiary, to the exclusion of others.
But what is the process for the distribution of assets if one of those items, like a house, was to be split amongst all the children while cash was designated only to a specific child — but the house was sold months in advance of the death of the maker of the Will?
Further, if the named beneficiary has died, what rights do the children of the named beneficiary have to the distribution?
Some USA states have residency requirements for the executors (as well as guardians and trustees) appointed in a Last Will & Testament. Under Wisconsin law, for example, non-resident status can be a determining factor in a court refusing to appoint an Executor.
Many states (Ohio and Illinois, as examples) do not have specific legal residency requirements for executors and other fiduciaries. But even though state residency may not be technically REQUIRED under the law, probate courts often PREFER that the executor be a resident of the state so that he or she can be geographically close to the court.
And even in those states where residency is not a legal requirement, the probate court is free to refuse to appoint a named executor due to out of state residency.
Standard Legal’s Wills for couples are meant to be created individually; it makes more sense for each spouse to have a separate Will than to create one jointly. Further, each Will states, “In the event that my spouse shall die simultaneously with me…I direct that I shall be deemed to have predeceased my spouse.”
This language in both Will is, in fact, appropriate. And while it may appear contradictory, it is in fact intentional.