We understand that legal questions can be intimidating — which is why we've compiled the questions we are most frequently asked and made them available here for easy access. If your question is not answered below, we encourage you to call us directly for a consultation at 678-992-2631.
Yes, if the testator (the person who wrote and executed the will in effect) is competent. A new will, or a "codicil," can be executed to create a new plan for dispensing the property in question.State law can change a will also. This is commonly done when there has been a divorce. Following a divorce, the ex-spouse's rights under a will are usually terminated, unless a contrary intent is clearly shown. (FYI, separation won't terminate a spouse's rights under a will.) The specific impact of divorce on an existing will depends entirely on state law. Birth, adoption or a new marriage will also cause your will to become void.
Yes. You may appoint co-representatives or a secondary representative — but this may create problems during probate. Normally, they will have the same powers to act, and this can create conflict. The nomination of two or more executors/representatives should be carefully considered.Appointing co-representatives might be an emotional reaction, i.e. you don't want to hurt someone's feelings. However, an emotional reaction is often not the best choice for a legal situation. If you nominate co-representatives, you need to believe that they will be able to cooperate in handling the estate.
A person contests a will by filing the relevant documents with the probate court. The person normally must be "interested." That is, he or she must be an heir under the will or at law. Also, there are time limits for contesting a will.
You must have grounds to be eligible to contest a will. Unhappiness with the proposed distribution of property is not a valid ground. Valid grounds depend on state law. Incapacity, fraud, undue influence and duress are the most common grounds.
A joint tenancy with right of survivorship is a method of owning property with another person. At the death of one owner, the other owner becomes the full owner of the property. The property isn't part of the decedent's estate, and therefore it won't go into probate. There are tax implications and simple ownership issues for a joint tenancy.A joint tenancy is not the equivalent of a will, which can do a number of other things. A joint tenancy creates a situation where the other tenant will get the whole property at the decedent's death. But if you give your brother Fred an interest in a joint tenancy on your home, Fred could sell his interest or his creditors could go after his interest.
A representative is charged with following state law in wrapping up the decedent's affairs. This includes:
State law has a default will for any person who dies without a will. Commonly, the spouse and children of the decedent will take the property. In the event there is no spouse or children, the decedent's parents will take the property, then siblings, grandparents and children of the grandparents. If no close relation can be found, the property will eventually belong to the state.As part of the probate process, creditors of the decedent are entitled to first claim of the estate property, after certain allowances for a spouse and children.
Since almost everyone dies possessing property, almost everyone needs a will. If you don't have one, state law will decide what happens to your estate's property. While the court will attempt to distribute your property according to what most people want, it doesn't always work that way, and the default plan usually distributes property to relatives.Someone who leaves behind a girlfriend, boyfriend or even a fiancé will not be able to provide them with any inheritance unless there is a valid will. There is almost no exception in law to provide otherwise.
Only an attorney can legally draft a will for a person, unless a person drafts his or her own will. Personally drafted wills are often incomplete, and therefore invalid under state law. An invalid will is worthless.Kits for writing a will are normally not state-specific. If your will fails to follow state law, it will be invalid.
The court oversees the probate so that the decedent's affairs can be concluded legally. If there is real property, someone will need legal authority to transfer property to any heir. If the estate is producing income, taxes will have to be paid. Creditors are paid from the estate property.Many states have provisions for an "informal probate," which greatly reduces the required interaction with the court — but doesn't eliminate it entirely. Almost every estate will have a piece of property that passes by title or deed, like a car or real property, and in most cases only someone with legal authority can legally transfer such property.
Internet Wills, Will Kits or pre-printed forms are one-size-fits-all. Life is rarely that simple. Wills should be tailored to meet each individual's particular circumstance. In addition, for no additional cost, The Broome Law Firm, LLC also discusses the necessity of other elements of an estate plan: living wills, health care power of attorney or general powers of attorney. These documents can assist you and your family if you become disabled.
Still have questions? Call Barry D. Broome, Counselor at Law, directly at: