On behalf of The Law Office of Wickersham and Bowers posted in Estate Planning on Monday June 14th, 2021.

The number of people who can contest a will is limited. Only someone who would be personally and financially affected by the terms of a will may bring a lawsuit to challenge the will’s validity. Someone in this position is considered to have “standing” by the courts. With this in mind, how does someone stand to contest a will?

Possible Heirs That Were Disinherited

Someone so closely related to the person who passed that they would have received a portion of that person’s estate if they did not have a will is known as an “heir-at-law.” Heirs-at-law are usually considered to have standing to challenge a will.

Beneficiaries Mentioned In A Prior Will

If a person (or an entity) was named in a previous, older will, this would provide sufficient standing to contest the newer will if it removes them from the document. They would also have standing if their share of the estate was smaller in the newer will. In the same way, if an executor of the estate was in the older will but removed in a subsequent will, that person will likely have standing to contest the newer will.

In each case above, each person listed would still have to demonstrate the will in question is for some reason invalid.

Who Cannot Contest A Will?

If you are not a beneficiary in a previous will, or not an heir-at-law, you are unlikely to have legal standing to challenge a will. This applies even if you believe the will is not valid. Minors are another group that usually cannot have standing to contest a will. In most states, however, a parent or guardian is permitted to challenge a will on a child’s behalf.

What Should You Do?

Contesting a will is complex series of laws. If you are considering contesting a will, your first step should be to consult a lawyer that specializes in these kinds of probate matters to see if you may have grounds. Contact the Law Office of Wickersham & Bowers to set up an appointment with one of our experienced lawyers.

On behalf of The Law Office of Wickersham and Bowers posted in Estate Planning on Wednesday May 12, 2021.

Avoiding probate, the legal process of resolving the estate of a deceased person, and distributing that person’s property to beneficiaries, can save money, accelerate the passing on of assets, and protect a family’s privacy. The two major grounds to avoid probate relate to both the time and to the financial resources typically needed to complete the process. Since probate involves the court system, it requires a variety of time-consuming proceedings and hearings that may take months or sometimes years to complete. Meanwhile, the heirs see no inheritance. Besides the slow administration process are the costs related to settling an estate through probate court. The court reduces part of the estate’s value through probate fees, and if an attorney is involved, even more costs are accrued, thus further cutting into the inheritance.

Another rationale for why you want to avoid probate is to keep one’s financial affairs confidential. Probate proceedings enter public record. This means anyone can get the information on how the estate was allocated. This includes the value and the name of the recipient.

Creating a Living Trust is the Easiest Solution

For these reasons, avoiding probate is often the best course of action. The only realistic way for that to happen is to allocate your assets straight to your loved ones. This can be achieved in several ways, but in most instances, the simplest is by creating what is known as a living trust.

When you create a living trust, the writers or grantors of the trusts fund them by placing assets they select into them. They then keep control of those assets until they pass. The grantors also select a person to be the trustee, distributing the property within the trust, based on the grantor’s directions after that person’s passing. When you have a living trust, the whole process occurs without having to engage probate law or turn to the probate court.

Other Methods You Can Use to Avoid Probate

Besides creating a living trust, there are several other ways that you can avoid probate, such as:

• Joint ownership of property so that one owner gets full possession after the death of the other;
• Including beneficiaries on every insurance or retirement account to whom benefits will go after someone passes; and
• Assigning recipients for TOD or POD accounts. TOD stands for transfer-on-death, while POD stands for pay-on-death. 

A Closing Note to Avoid Probate

Make sure you recognize that there are some states in the US have probate procedures for estates that are below specific value. Some states probate laws are easier, shorter, or simply different than this overview. Therefore, whether you should try to avoid probate is relative to the situation in your area.

On behalf of The Law Office of Wickersham and Bowers posted in Estate Planning on Monday April 12, 2021.

Have you written a will? If so, have you thought about your wishes for your children? Planning your estate is important, but your children’s long-term welfare should be your top priority. For this reason, your will should include the names of legal guardians you feel could best care for your children if you became incapacitated, passed away, or were otherwise unable to provide for them. Before you decide on guardians, the following are some key points to consider.

1. Think about the Big Picture

If one of the guardians you choose passes away before you update your will, and the other is unable to assume the role on their own, you’ll be in a dilemma. So, creating a backup plan that considers all of the “what-ifs” makes good sense, and gives you control of your children’s well-being even if you’re incapacitated or deceased.

2. Provide Detailed Instructions on How Your Children Should be Raised

Is there a certain school you want your children to attend? What about their nutritional needs and religion? As their biological parent, your wishes should be respected. While you can’t certify that your child will study ballet or learn how to play soccer, you can at least make clear your desires about how and where they’re raised.

3. Select Multiple Guardians

Choosing three or four different guardians safeguards your children’s future, particularly if your first or second choice fails to work out. Carefully selecting a number of backup guardians ensures that your children will be taken care of, no matter what happens.

4. Consider Parenting Skills, Beliefs, Finances, Age, and Living Situation

It might be beneficial if the named guardian is a parent, so they already know how to raise children. Also, their religious or moral beliefs, financial situation, age, and living situation are all key factors to consider when thinking about your children’s future life and well-being. If the prospective guardian meets all of your criteria except the element of financial security, you might consider establishing a trust for your children so their guardian can raise them in comfort. 

Ultimately, you are the only one who can determine the ideal custodian for your children if you’re unable to care for them yourself. To learn about how our experienced Florida family law attorneys can help you choose the right guardian and guide you through the guardianship process, call us toll free at 386-252-3000 or fill out the contact form on our website.