Mark Brown Law

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A Last Will and Testament can be anything from a short story to a novel.  It needs to be written.  It covers important matters such as how an estate should be distributed, who should be in charge, and who should care for minor children.  But it can also be used to comfort, instruct, motivate and encourage family members, and to reinforce virtues that one has emphasized in a family.

A Will is the only legal method for distributing assets which are in the deceased person’s sole ownership at death.  (The Will does not control or deal with assets which are jointly owned, or which are transferred by beneficiary designation, or other designations like “transfer on death” or “payable on death.”)

Wills are very technical documents, and are carefully interpreted, by a Court if necessary, to be sure the intentions of the Maker are known and followed.  The Maker of a Will must have sufficient mental capacity to make reasonable decisions and must be of legal age.

When is a Will legal?  For the Will to have legal effect, it must be signed by following specific rules and by using at least two impartial and neutral witnesses.  In addition, it is advisable to have a Notary Public witness the signing of a Will.  The purpose of these parties is to verify the person signing is of sound mind and legal age, and is acting freely, without any threat or negative influence of any other party.

Holograph Wills.  These are Wills which are handwritten and not witnessed.  They are recognized and legally effective in Nebraska and many other states.  However, Holographic Wills are not recommended for several important reasons.  To be legally effective, very specific rules must be followed.  It may be difficult to fully understand the intentions of the Maker of such a Will, which may cause a legal challenge.  It can only be accepted into probate with the approval of a County Judge after holding a court hearing, which adds to the expense of a probate.  Therefore, the cost of having an Attorney prepare a Will is a good investment when considering the extra expense and potential difficulties of carrying out a probate of a Holographic Will.

What about Online Wills?  Wills can be done online by using services provided by legal websites.  These Wills can be legal if they are prepared and signed properly.  These Wills may not address the specific needs or wishes of the Maker caused by unusual situations in a family or by the Maker’s specific intentions, such as charitable giving.  An online program may not gather all of the information needed to customize the Will to meet the wishes of the Maker compared to having a face-to-face conference with an Attorney to gather information and to hear the Maker describe his or her wishes and intentions.

What is to be done with the Will after death?  The death of the Maker of a Will activates the Will.  If the value of the assets in the deceased person’s name alone are high enough, the Will is filed in County Court along with pleadings prepared by an Attorney for the County Court to accept the Will into probate, to open the estate and to appoint a Personal Representative (“Executor”) to handle the estate.

Probate.  Basically, the probate process allows the court to monitor the estate to be sure everyone who is legally entitled to receive property from the estate receives their proper share.  Probate involves three steps: 1.) opening the estate by filing the Will and having a Personal Representative appointed; 2.) identifying and collecting assets, paying bills, taxes and expenses; and 3.) distributing what remains to the beneficiaries named in the Will, or legal heirs of the estate if there is no Will.

What You Need to Do Now Regarding Your Legal Plan?

  • Don’t procrastinate.  Unless you have a crystal ball, you just never know when death may occur.
  • Have your documents prepared by an Attorney.  Get the advice of an Attorney to determine which type of Will or Trust best suits your specific situation and wishes.  You are the only one who knows the needs of your family, such as who you want to care for your children, and the extent of your assets.  If you have minor children, it is even more important that you have a Will to be sure you have established who will care for your children, provide for their support and protect their inheritance.
  • Keep your Will current.  Change is the only constant in life.  As you increase assets and your family expands and matures, you must update the Will to address these changes.  Generally, Wills should be reviewed every three to five years.  The should be reviewed if serious events occur, such as disability, divorce or death of a family member, including those whom you have named to care for children or to manage their inheritance.  Receiving a significant inheritance should cause a review of the Will.  People you have named who are appropriate at that time to care for your children or to manage your estate may not be the best even a few years later.
  • Keep documents safe and the location known.  Be sure to keep the original estate planning documents in fireproof storage and to let those whom you have named to serve first in your estate where they are located.  Consider if you believe it is advisable to have the person(s) on the approved list for access to your safety deposit box, if you use one.
  • Prepare written information regarding you estate property and your children.  It is wise to prepare an updated list, location and value of assets and contact information of those who are involved with them, such as financial advisors, bankers, Accountants, Attorneys, etc.  It is very beneficial to leave a “Last Love Letter” to your spouse and children, and to prepare a “Letter of Instruction” to give guidance to your named Guardians and those who would be managing an inheritance for your young children.

Protect those who are important to you and the assets they will need for their support and financial security that you have worked so hard to achieve.