What you need to know about wills and estates: A MyPhillyLawyer primer

By Dean I Weitzman, Esq. on March 14th, 2011

Do you have a will written in case something should happen to you?

Have you carefully written down details for what should happen to your property and assets in the event you die?

If something should happen to you, will your family know that they don’t have to add worries about what will happen to your belongings, assets and real estate to the pain they will already feel from your loss?

If you’ve answered “no,”  to any of these questions, then it’s time for you to take stock in yourself and your family and create a legally-binding will to protect your loved ones and your estate.

It’s not a pleasant subject to talk about, but if you don’t deal with it, you leave it up to the courts and the laws of your state.  It’s better if your will can properly fulfill your wishes and directions in the event of your loss, rather than leaving it up to the courts.

In today’s post, Saul Langsam, one of the attorneys on the MyPhillyLawyer staff and an expert with more than 30 years of experience helping clients with wills and estate law, talks about the process of creating a will.

MPL Blogger:  What do people need to know about wills today?

Saul Langsam:  The reason for the will is that you want to leave detailed, written instructions about who will receive your assets in the event of your death.  If you don’t leave your own instructions but you die owning assets, our legislature in Harrisburg created a legal framework for the distribution of your assets that they deemed appropriate.  That framework, though, doesn’t give you any choice.  It defines a ‘pecking order’ for your assets by law, for everyone from spouses to children to other relatives who might make a claim.  Many times if someone doesn’t leave a will and dies, then their assets can be awarded by the court to relatives who they might not have included in a will.

MPL Blogger:  How can that happen?

Langsam:  An estate of someone who dies without a valid will is called “intestate,” which means essentially that the state you live in will create a will for you, by default.  That’s done to allow the orderly distribution of your assets.   The problem is that without a will that you personally leave, anything can happen. Because if there’s no will document, if an outcast family member falls within the rules of the state’s asset distribution rules, then under the rules they’d get something from your estate due to the laid-out pecking order that’s in place. Most states have this system.

MPL Blogger:  So what does a will include?

Langsam:  A will declares ‘here is what I have, here’s an executor to carry out my requests, and here’s what I want to leave and to whom.’  The executor should be well thought out bec it’s a responsible position to designate.  Be sure that it’s a friend, a relative or somebody who you have confidence in who will follow the instructions in the will document.  Depending on the complexity of your estate, you may want someone who is savvy in real estate, business and the stock market so they can make the best decisions in connection with your estate.

MPL Blogger:  Does everyone need a will?

Langsam:  Young families are obviously encouraged to create these documents where there are young children because you can also create trust provisions for them.  That will allow you to gather the assets of the estate for the benefit of children under 18 years of age so they are well taken care of in the event of your death.  You also should have a will throughout the many other transitions in life.

MPL Blogger:  In addition to an executor, who else can be involved in carrying out your will and wishes?

Langsam:  Besides identifying an executor, you also have to identify two other people. There’s a trustee, who is the person responsible for carrying out the wishes of the trust document for any children.  And just as import, with minor children you also have to identify a guardian in case of a catastrophic loss where both parents pass away. The guardian would then legally take over the raising of the children.  These three tasks can all be given to the same person or shared by multiple people, depending on the family and the size of the estate.

MPL Blogger:   How does a person leave details about what to leave to each person in their will?

Langsam:  In the will, you can make either specific bequests or a residual bequest, detailing items or collections or whatever you want to give to someone.  You can also list ‘residual heirs’ who get anything else that’s not specifically listed to go to someone else.  You may want to leave a donation to your favorite charity or institution and then leave everything else to a son or a daughter or someone else.

MPL Blogger:  How long does it take to create a will and what does it cost?

Langsam:  A simple will can be prepared quickly. It can be written starting at $250 and go up depending on how complicated it is and whether there are trust provisions, marital trusts and other factors.  It can then be amended as needed over the years.

MPL Blogger:  Wills need to be amended?  How often and why?

Langsam:  Statistics show that the average person who has a will changes it about five times in their lifetime. Their needs change over time. You perhaps create a will in your 20s then change it when you get married. You will change it again when you have children, then again when your children head out on their own. As a grandparent, you might change it again. By having a will in the first place, it is much easier to change that will with the passage of time because you’ve already thought along these lines.

MPL Blogger:  What’s the main reason for a will?

Langsam:  You’re safeguarding the assets you’ve accumulated over your lifetime.  You are directing who the beneficiaries should be and in the case of minor children under 18, you control the distribution of the money to the minor children.  You can indicate at what age intervals a portion of the trust principal should be distributed to them.  You can also describe under what circumstances the accumulated interest of the estate should be distributed.

MPL Blogger:  So how does one get started and create a will?  Can I do it myself or do I need an attorney?

Langsam:  Yes, you can do it online at various Web sites or by purchasing a printed kit from some retailers.  But the benefit of going to an attorney is because you then have somebody who can answer your questions.  An online Web site or a kit where you fill out a form doesn’t speak to you or advise or help you.  It depends on what you need.  The least sophisticated wills may lend themselves to using a fill-in-the-blank form, where there are no children, a nominal estate and under $100,000 in real estate.   If it’s more complicated than that, it would be a good thing to hire an attorney to create your will.

MPL Blogger:  Once it’s written, where does a will go?  Who keeps it in the event of the owner’s death?

Langsam:  I give my clients a choice.  Do they want me to keep it here in our office in our safe deposit box or do they want to keep it for themselves?  Most ask us to keep it.  Then we can be notified by a family member after someone dies.  If the family wishes us to lead them through the probate process we do so.  Otherwise, we give them the will documents to do as they please.  The will is then registered with the probate court system where the administration of the will continues.

MPL Blogger:  In your years of experience with wills and estate law, what have you identified as the biggest pitfalls?

Langsam:  The biggest is that the notion of greed can seemingly begin to infect all family members to the point where they become uncivil to each other during the process.  Then everybody runs and gets their own attorney, even in an estate where there is very little to fight over.  The will document is really part of one’s own housekeeping.  It’s part of organizing your estate for when you’re gone because it eliminates a lot of dissension among family members.  By creating a will, you have reduced your wishes to writing and spelled out how your assets are to be distributed and to whom.

MPL Blogger:  What are the three most important points you give to your clients about having a will?

Langsam:  First, if you do little else, at least create a simple will to protect your family and yourself.  Nobody can read your mind.  If you don’t put it in writing, it’s only guesswork.  Second, absolutely do it now.  Don’t put it off any longer.  Remember, you can always change and modify it at the snap of a finger.  And third, by working with a skilled, knowledgeable attorney to create your will and organize your estate, you’ve now developed a working relationship with an attorney who you can feel free to call with any other questions.

MPL Blogger:  Thank you, Saul, for talking with us about the importance of wills and estate planning for your clients and potential clients.

Langsam:  It was my pleasure, and if your readers have any additional questions, ask them to just give us a call here at MyPhillyLawyer and we will assist them in any way we can help.