If you have ever browsed through celebrity news websites when you had nothing to do, you might have found some stories about family members battling over their inheritance from a deceased family member’s estate. The classic example of inheritance disputes involves a wealthy man’s widow fighting with her late husband’s children from a previous marriage over which family members are entitled to which assets. Even if the deceased person was not wealthy enough or famous enough for their obituary to be published on the front page, or even the society page, of a newspaper, there is still plenty of room for disagreement about the distribution of the deceased person’s property to their heirs. You might even know someone whose relationship with their siblings was never quite the same after their late parents’ estate went through probate. Every state has laws about administering the estates of deceased people, but the process is always simpler.
What Is a Will?
A will is a document with instructions about what you want your surviving relatives to do with your property after you die. No matter how many or how few assets you own, these are some matters you should address in your will:
- Who should be the personal representative of your estate, also known as the executor or executrix of your will
- Whether you want your body to be buried or cremated or to undergo alkaline hydrolysis (also known as flameless cremation), and where you want your remains to be buried or your ashes to be scattered
- Who should have custody of your children if you and your children’s other parent both die before the children reach adulthood
- Which assets you own
- Who should inherit which assets from you
Writing a will can be empowering, because it gives you the opportunity to provide financial stability for the people who depend on you or the people you care about, even after you die. You can leave your property to anyone you choose. For example, you can divide your estate equally among your children or divide it unequally, according to your children’s financial needs. You can even disinherit your entire family and leave all your money to a favorite charity. The only person who can override your decision to disinherit them is your spouse; a surviving spouse can claim 30 percent of the estate if the decedent had children and 50 percent if the decedent did not have children. Some couples who have children from previous marriages sign prenuptial agreements in which they agree not to claim the elective spousal share.
In estate law, “personal property” is anything you own except money, stocks and bonds, and real estate properties; in other words, it is your stuff, including furniture, jewelry, and anything else you own. Some people simply leave all their personal property to one family member or divide it by percentages; this is why so many families spend months sorting through a deceased family member’s belongings after the family member dies. If you want certain family heirlooms to pass to certain family members, you should mention these in your will.
Everyone Needs a Will, Even If They Are Young and Healthy
Every state has laws about what happens when someone dies without a will. When this happens, the court follows the laws of intestate succession. This means that your closest relatives inherit your will. If you are married, then your spouse inherits your estate. If you have children but you are unmarried at the time of your death (for example, if you are widowed or divorced), your children inherit your estate. If you are not married and do not have children, the estate goes to your parents if they are alive, and if they are not, it goes to your siblings. A lot of people procrastinate writing a will not only because it is not pleasant to think about your own mortality, but also because they were planning to leave their property to their closest family members, anyway, and even if they did not write a will, their close relatives would still inherit from them.
You still need to write a will even if you are married and plan to leave everything to your spouse and children, or if you are single and plan to leave everything to your siblings. Intestate succession laws only address inheritance of property. They do not deal with the issue of disposition of your remains; if you do not write a will, your relatives will have to decide whether you would have wanted to have your body buried or cremated. Even when there is no will, the court will still have to appoint a personal representative of your estate. Your kids might have outgrown their childhood sibling rivalry, but old rifts can reopen if they have to argue about which one of them should be the personal representative of your estate.
Making Sure That Your Will Is Legally Valid
Probate is the process where the court reads your will (if you wrote one), appoints a personal representative for your estate, gives creditors a chance to seek repayment of debts from your estate, and then distributes your assets to your heirs. If the decedent wrote a will, the court simply follows the instructions in the will, and if the decedent did not write a will, then the court follows the rules of intestate succession. Most complicated disputes in probate take place when a family member of the decedent presents a will to the court, and another family member argues that it is not valid. In order for a will to be legally valid, the deceased person must have signed the will in the presence of several witnesses, and the witnesses’ signatures must also appear on the will. Most states require the will to be typewritten, but a few accept handwritten wills. If you wish to amend your will, do not simply cross out the parts you want to change and then write in the corrections. You can either write a codicil to the will or write a whole new will.
Many probate disputes arise when there is more than one version of the will, and various relatives of the decedent disagree about which one represents the decedent’s true wishes. If you have previously written a will and you are writing a new version, include a provision saying that the new version nullifies all previous versions of the will. Even better, physically destroy all known copies of the old will.
Especially in cases where the decedent wrote a new version of their will shortly before they died, some members of the family might allege that the decedent wrote the new will because of undue influence. In other words, they allege that the family member who spent the most time with the decedent during the decedent’s final illness pressured or misled the decedent into writing a new will, usually with the allegedly influential family member as a beneficiary.
If several close members of your family are at odds with each other, or if you can imagine a possible point of dispute over your estate, contact an estate planning lawyer about how to word your will in a way that will easily resolve this dispute. If you think your probate case will be high conflict, you might wish to designate a lawyer as personal representative of your estate, instead of a family member.
Why Wills Are Important in Mesothelioma Cases
In the simplest cases, the estate of a deceased person settles within a year of the person’s death; when the estate settles, the beneficiaries listed in the will (or the closest surviving family members, if the decedent did not leave a will) get their inheritance. One reason that an estate can take a long time to settle is if there is a dispute over the will or over debts owed by the decedent. Another reason that it can take a long time for the estate to settle is if the decedent has a pending lawsuit.
When a person dies, the personal representative of the person’s estate ties up any loose ends related to the deceased person’s finances; the estate cannot settle until after the personal representative has finished this task. For example, the estate must file a final tax return for the deceased person. Likewise, the personal representative might need to sell one or more real estate properties belonging to the decedent in order to satisfy outstanding debts owed by the decedent or in order to divide the proceeds of the sale among beneficiaries listed in the will. If the decedent was a plaintiff in a lawsuit, the settlement from the lawsuit will go to the estate. Mesothelioma lawsuits can take years, and in many cases, the family does not receive the settlement until after the original plaintiff has died. If a close family member of yours died while a mesothelioma lawsuit they had died was still pending, your mesothelioma lawyer and probate lawyer will help you through the legal processes.