Last Will & Testament
Fort Wayne Wills Lawyer
A Last Will and Testament (more commonly referred to simply as a Will) should provide simple, straightforward directions to your surviving loved ones, and can be used to give specific personal property items, monetary gifts, real estate, and other assets to individuals or even charities. A Will allows you to put in writing your wishes on how to distribute your assets and wrap up your affairs. One of the most important, if not the most important instruction in your Will, is who will become the guardian of your minor children.
A Will should also name a “personal representative” (the modern term for an “executor”) to carry out the terms of your Will. A personal representative will work with the estate attorney by gathering all your assets, ensure minor children go to the named guardian, ensure assets go to the proper designated people in your will, and determine if an estate needs opened. The first task of a personal representative is to petition (request) the Court to appoint them as the personal representative. This is done at the time they probate the Will and petition to administer the estate/open the estate. Not all Wills need to go through the court process. This will depend on the type and value of your assets at death and other factors, see estate administration. Choosing a personal representative is very important. You want to choose someone you trust, someone who will follow your wishes, and usually someone who lives in Indiana.
Your Will can also be used to name a guardian for your minor children, create a trust for family members who are too young or incapacitated to handle direct gifts, and even provide for the care and financial needs of family pets. If you leave no Will at all the laws of the state will be instrumental in determining who will be the guardian for your minor children. The unintended result could be two (2) or more family members/in-laws fighting over who should be the guardian of your minor children. The winner may not be the person or persons you wanted your children to go to. It can be difficult to decide who to name as a personal representative or even a guardian for your minor children. In fact, we see clients delay drafting their Will for this very reason. While we cannot name someone for you, or tell you who to name, we will guide you through the thought process of things to consider when naming a guardian. Remember, you can always change your Will if circumstances change with you or change with your named personal representative, guardian, or beneficiary. If a beneficiary is on Social Security or receives other governmental assistance, inheriting your assets may negatively affect what he or she receives from Social Security or other governmental assistance.
Excluding someone from inheriting your assets or leaving specific items to someone can also be done in your Will. You are able to leave specific items to a person or even a charity in your Will. You may also specifically exclude someone who may otherwise be entitled, so they do not take a share of any of your assets. However, there are limitations in the event you want to exclude your spouse and Indiana Law should be carefully considered before excluding a spouse. An excluded spouse has certain rights under Indiana law. This is known as the spousal election, surviving spouse laws, and widows allowance laws.
Other terms you should know:
- Testator/Testatrix: This is the male/female who created the Will.
- Beneficiary/Heir: Is a person who receives some benefit as a result of a Will or Trust.
- Devise/bequeath: Are fancy terms that mean to give or leave assets to someone.
- Per Stirpes or Per Capita: These are legal terms which determine how your assets will be devised if an heir/beneficiary predeceases the Testator/Testatrix.
In your Will, you can also provide for Trusts that are not created until you die. A Testamentary Trust can be used when you have minor children and you want to delay or stagger their inheritance. A lump sum inheritance received at age 18 is often not a good thing. A Special Needs trust can also be included in a Will. This Trust allows for the inheritance to pass to an heir who is receiving Supplemental Security Income or other government assistance and not adversely affect those disability benefits. A Miller Trust is a tool used to qualify for Medicaid to help pay for health care services. The attorneys at Perry Law Office can help you determine which type of Will or trust is appropriate for you and your family.
Contact a Fort Wayne Wills Lawyer Today
It’s never too early or late to get a will. Contact an estate planning and wills lawyer at Perry Law Office today at (260) 483-3110 to discuss your needs for a last will & testament.
What if I do nothing and die without a Will?
In this case, the laws of the state of Indiana will determine how your assets are distributed to your family. People often think I am married, so my spouse will take everything 100%. Wrong. In many cases that is not true. It is true that anything jointly owned will go to your spouse, but everything else is distributed per Indiana law, which could include your children, parents, or siblings getting a share. For example, if you are married and have children with that spouse when you pass your spouse does not get 100% of your assets. Or if you are married and have no children, and your parents are alive, your spouse does not get everything 100% when you pass, your parents may receive some of your assets.
It’s never too early to have an estate plan. However, incapacity or death make it too late to prepare an estate plan. Before that happens please contact an attorney and discuss your options. You are never too old for an estate. There is a reason in almost every stage of life to have a Will drafted. It’s also never too late to update your Will. With every major life event, you should consider whether your current plan still meets your needs. Some life events that may cause you to modify or change your current estate plan are: marriages, births, divorces, passing of a loved one, inheritance, purchase of property, personal representative moves away, guardian moves away or is now too old or limited in mental or physical abilities to care for your children.
I already have a Will, but can I make changes to it?
Yes, you can change your Will any time, as long as you are competent to do so. Not only can you make changes to your Will, we recommend that you periodically review your estate plan to determine if changes are appropriate. You should review your Will after any major life event to see if it is time to update anything. You should take into consideration whether any of the following have occurred:
- Marriages, divorces, birth of children or grandchildren?
- Passing of a loved one?
- Need to change a person you named as a personal representative, a guardian for your children, or a named power of attorney?
- Acquired interest in any real estate, especially out of the state of Indiana?
- Possible modifications as to how you want your estate to be distributed or have specific items you want to give to someone (i.e. family heirlooms, jewelry, antiques, vehicles)?
- Significant changes in employment status or income?
- Considering retirement?
- Inherited or could inherit assets?
- Started a business?
Specific procedures need to be followed even when updating your Will, so it is advisable to speak to one of our attorneys about any changes you want to make rather than marking up your current Will.