Estate Planning Mistakes – What a Will Fails Miserably At
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Estate Planning Mistakes – What a Will Fails Miserably At


Hello. I’m Gary DeWitt. There are things a Will does well and one thing it fails to do completely. A Will also has limits on it’s powers. Today I’ll tell you what a Will is, what a Will isn’t and what it does well. Things you can’t do in a Will in Arkansas and things a Will miserably fails at. I’m an attorney that practices mainly in the areas of Estate Planning and Probate here in Northwest Arkansas The picture on this page is Shakespeare’s Last Will and Testament. A Will is a document in which the person writing the Will, the testator, expresses their wishes on how their property is to be distributed. Wills provide no lifetime protection for you or your money. A Will is really nothing more than a list of instructions on how to pass your property to the next generation and nominating somebody else to care for your minor children. It also names somebody to oversee taking the document through court, the executor to manage the property until its final distribution. A Will controls who gets what and how much, but not when and not how they get it. It may end up that everything is sold and the money split. You may have wanted the children to share some piece of real estate, but the court orders it sold and the money split. It can be very detailed in the instructions or you can be very terse. I’ve seen Wills from 1 page to 40 pages depending how detailed they were. And even though a Trust can be created in a Will, the Will must still be Probated. for that Trust to be created. The requirements for a Will in Arkansas are You’re 18 years old or older Know what you have and who you want to give it to. This is known as testamentary capacity. You can be diagnosed with dementia but still have the capacity to sign a Will. And you need to sign it in front of 2 witnesses. If you can’t sign, then you can direct somebody in the room to sign for you. There is no requirement in Arkansas that you have your Will notarized. In Arkansas you can hand write your Will. However, it must be completely in your hand writing. No part can be typed. It would best to have it witnessed by two people not related and not mentioned in the Will. If not, then it may be proven in court by three people as to the handwriting and signature of the person. Handwritten Wills are not the preferred way to go, but will due in a pinch. Wills do some things really well Wills ensure Probate Wills make sure a Judge will oversee the distribution of your property Wills tell the Judge how to distribute your property Wills tell the Judge who should oversee distributing your estate. Wills nominate guardians for your minor children Wills can create a Trust, but Probate is still required. In Arkansas there are some limits as to what you can and can’t do in a Will. You can’t disinherit your spouse completely. Your spouse is entitled to a share of your estate by law. That means even if are separated your spouse is entitled to a share. That means even if you are divorcing, your spouse is entitled to a share. However, once a divorce is complete, the law says the gift to your your ex aren’t valid any more. If you fail to mention your children in a Will, they are entitled to a share. You need to make sure all your children are mentioned or left a token gift if you want them left out of the inheritance. A Will fails to prevent Probate. A Will alone cannot stop Probate or a Judge’s involvement and oversight. A Will requires Probate to be validated and activated. Then the Probate will continue until your estate is distributed. A Will must pay your final bills and expenses. In other words, a Will can’t conserve that money for your family. If you pass with $10,000’s of medical bills, then the Will must pay them off before any money is given to your children. A Will fails to give you any lifetime protection. Let’s end with a short story about Wills. Bill thought that just a Will would prevent Probate. But just a Will doesn’t prevent Probate as Bill’s family discovered when they tried to sell his house. Instead of being a smooth, quick transition, Bill’s family had to go through Probate. the expense, time, and hassles to get the house sold and estate settled. If Bill had done some additional planning, then his family could have avoided Probate to sell the house, saving time, money, and emotional turmoil. Be watching for part 3 soon. Thank you for watching today.

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