Individual Legal Services

We believe you’ve worked too hard to watch your assets be fought over and handed out to those you never intended. The following questions and answers will help you understand why you should not wait any further to prepare your estate documents.

FREQUENTLY ASKED QUESTIONS:

1. Why do I need a Will?
   
2. What is a Will?
3. What is the difference between a Will and a Living Will?
4. What is an estate?
5. What is an executor?
6. Who keeps the Will?
7. Why can’t I draft a Will from a stationery store?
8. What is intestacy?
9. What is probate?
10. What are the costs of probate?
11. What is a Trust?
12. What are the different types of Trusts?
13. Where do I start?

1)Why do I need a Will?
If you own property such as bank accounts, stocks, bonds, art, jewelry, cars, furniture or other personal effects, or your own real property, such as land or buildings, you need to advise your loved ones how you want it distributed after you die. Don’t let relatives or friends fight over your things when you can easily instruct how you want your property distributed.

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2)What is a Will?
One of the ideas behind preparing a will is to prevent survivors from fighting over the assets you worked your entire life to collect. In preparing a Will, you are helping to clearly guide the distribution of your belongings to those you want to inherit them and in accordance with the laws of the state. Your Will helps to prevent the law from otherwise stepping in to distribute your property in ways you may not otherwise have intended.

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3). What is the difference between a Will and a Living Will?
A will is a document outlining your wishes for the distribution of your property, both real (land) or personal (jewelry, art, furniture).

A living Will is also known as a healthcare directive. This is a document you find most hospitals ask for before you are admitted into their facility. A Living Will or healthcare directive concerns how you want to be treated medically if you can no longer assist in the decision making process along with your doctors or other healthcare providers.

A Living Will is only in effect for as long as you are alive, whereas a Will only becomes effective after you die.

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4). What is an estate?
An estate is a legal term of art which means your collective assets and liabilities after you have passed away It consists of land, personal property, debts owed by you and debts owed to you.

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5). What is an executor?
The executor is the individual or, in certain instances when more than one individual is appointed, individuals, appointed within the Will to carry out the terms of the Will. Once they are formally appointed by the surrogate’s court in the appropriate county, they are responsible for the following: the gathering of all assets and liabilities; notifying all beneficiaries listed within the Will; settling any and all claims against the estate and following an accounting and payment of any taxes; distributing the assets. Each Will may be more specific as to what powers the executor may have. These are just some of the general powers and responsibilities.

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6). Who keeps the Will?
Many people believe that a Will is filed with the county surrogate’s office following its execution. This is not necessarily so. The original executed Will and its and copies are usually kept in a safe deposit box, a strong box or in a safe place where it can be accessed following your death. Attorneys can keep the original but many firms have chosen to merely hold an executed copy and provide the originals to their clients for their safe keeping.

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7). Why can’t I draft a Will from a stationery store?
Most stationery stores offer Wills in both software and hard copy forms. Unfortunately, they tend not to meet the requirements of any one particular state. This means that while you have a format, if it is not prepared in accordance with the laws of a particular state, that court may not accept it into probate, claiming it is not conforming. Look for the disclaimer on these forms.

Your property and belongings are too important to allow your entire estate to wind up in a protracted litigation. Garces & Grabler are committed to assisting our clients to prevent this from happening. We offer counseling and assist our clients in properly preparing Wills with the goal of having them properly admitted into probate.

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8). What is intestacy?
Intestacy is what happens when a person dies without a Will or with a Will that is not accepted by the county surrogate’s court. When this happens, the costs incurred in disposing or distributing the deceased’s assets can increase and take longer to resolve. Someone has to be appointed by the court to act as an administrator (with a Will, it is an executor) and it can lead to a more complicated and protracted process. This is why having a Will is preferred and recommended.

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9). What is probate?
Probate is the judicial term of art used when the court accepts the Will as being valid and controlling. In other words, once the Will is admitted into court, its terms and conditions are accepted, unless otherwise challenged. When the Will has been accepted into the court, the estate is being probated.

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10). What are the costs of probate?
Costs of probate vary from case to case. If the Will appoints an executor to serve without bond, this means the representative of the estate does not have to post a bond with the court in order to exercise his or her duties under the Will. Usually, costs can include obtaining the requisite letters testamentary (these are court issued papers which identify you as the representative of the estate and are produced to third parties, such as banks, lending institutions, mortgage companies, brokerage houses or life insurance companies.) Costs may also include the retaining of accountants (to pay any and all taxes) or lawyers if the executor feels it is in the best interests of the estate to handle the probating of the estate, such as in collecting monies owed, negotiating down debts or fighting off challenges to the Will by third parties.

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11). What is a Trust?
Trusts are entities established for the protection of certain assets for the benefit of named beneficiaries with the intent that creditors may not be able to attach those assets in the Trust. In many instances, an individual may own property or monies which they do not want in their name or in the name of a particular person. Nevertheless, they want the use and enjoyment out of the property or money but want to protect it from outside creditors.

Trusts are established for a variety of reasons – tax consequences; Medicaid planning; Elder Law considerations; charitable intent, etc.

Garces & Grabler can assist you in deciding if you should consider establishing a trust and providing you with options to consider.

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12). What are the different types of Trusts?
The following are but a few of the types of Trusts: Special Needs Trusts; Spendthrift Trusts; Charitable Trusts; Pour-over Trusts; Education Trusts. Each Trust has its own benefits and drawbacks

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13). Where and how do I start?
It’s simple. Call us toll free at 1–800–923–3456 or contact us to schedule an appointment at any of our offices to meet with an attorney. Bring your existing Will or Trust so we can review it together. If you have not already prepared a Will, schedule an appointment so we can discuss how you want your assets to be distributed.

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