The simple will is the most commonly used estate planning document because most people do not consider the value of trusts. In this post, we will share five things that you should know about simple wills so you can go forward with a more thorough understanding of the pros and cons.
Witnesses Are Required
We practice in North Carolina, South Carolina, and Kentucky, and there is a minor difference with regard to the witnessing requirement. In Kentucky, you must sign your will in front of two witnesses, and they must sign the will in front of one another.
Under the relevant North Carolina statute, the will must be signed in front of two witnesses, and the witnesses have to sign the will while they are in the presence of the testator.
A Will Must Be Admitted to Probate
When you create a simple will, you name an executor in the document to act as the estate administrator. The executor would be required to admit the will to probate, and the court would provide supervision during the estate administration process.
Wills Can Be Contested
Interested parties can come forward during the probate process to challenge the validity of the will, and there are four acceptable grounds.
One of them is improper execution. If the witnessing and signature rules were not followed correctly, the will could be deemed invalid.
Incapacity is another one of the acceptable grounds. If the person that created the will was not of sound mind at the time, it would not be valid. A significant percentage of elders experience cognitive impairment so this is a very real possibility.
In some cases, someone will apply undue influence when a will is being created. For example, a person who is acting as a caregiver could threaten to withhold the care unless the caregiver receives certain considerations in a will.
A challenge can also be based on an allegation of fraud, which could be present if the testator is misled about the nature of the document he or she is signing.
If you are the parent of a dependent child, estate planning is an absolute must. Among other things, this will involve naming a guardian who would care for the child in the event of your passing.
You can nominate a guardian in a simple will, and if it ever becomes necessary, the court will generally honor your choice unless there are some extenuating circumstances.
Changes Are Possible
After you create your will, it can be changed or revoked. You can simply destroy the will and create a new one, or you could create a more recent will and state that it supersedes any previous will that you have executed.
Wills Are Limited
A simple will is a very limited document that does not give you much latitude. Unless you include a testamentary trust, the beneficiaries will receive direct, lump sum inheritances after your passing.
This can be risky if you are not confident about the money management capabilities of an heir or heirs. There is no asset protection after the property is in their hands, and they may have nowhere to turn for support if they spend their inheritances too quickly.
The probate process that we touched upon will generally take eight or nine months at minimum, and inheritances are held up while the estate is being probated by the court. There are also expenses that accumulate during probate, and probate records are available to the public.
If you use a living trust as your primary asset transfer vehicle, the distributions will not be subject to probate. Plus, you can include a spendthrift provision that would protect the assets from the beneficiary’s creditors, and you can provide limited distributions over an extended period of time.
We Are Here to Help!
When you work with an attorney from our firm to develop your estate plan, you can explore all your options and make informed decisions. At the end of the process, you will come away with a custom crafted plan that ideally suits your needs.
If you are ready to set the wheels in motion, you can reach our office in Charlotte, North Carolina or Huntersville, North Carolina if you call us at 704-944-3245. The number for our Ashland, Kentucky office is 606-324-5516, and the number for our Florence, Kentucky office is 859-372-6655. You can also fill out our contact form if you would prefer to send us a message.