Creating a last will and testament is the convergence of a number of areas of law. It often involves some tax consideration and an understanding of the laws of the commonwealth with regard to estates. It also involves some knowledge of how assets work and how they are held. Most importantly, it does involve some experience with administering estates.
A wills attorney can assist with drafting a last will and testament and, more importantly, creating a comprehensive tailored estate plan that can contemplate family disputes, family dynamic, the assets that are being governed, a client’s wishes and any tax consequences that may be involved based on the distribution of the assets or the individual’s wishes for distribution of the assets.
Complexity of the Laws
The concepts that are involved with writing a last will and testament and some of the terminology itself can be very difficult to understand for individuals who do not write estate plans very often. In fact, even for a lot of attorneys who are not familiar with estate planning, the concepts and the words may not be familiar. For this reason, it is imperative to seek the counsel of someone who is familiar with these laws and deals with them regularly.
Initiating a Will
There is never a bad time to begin to think about creating a last will and testament. Often, one of the most issue-driven scenarios is when an individual dies who is not married, with no children and some assets because there is not a clear directive of who would be entitled to inherit. That scenario can often lead to a family dispute.
Many times clients will frequently seek the services of an attorney to help with a will when they have had a major life event or they are planning a vacation. But more often, it is when they have recently gotten married or are contemplating getting married or divorced, there has been a birth in the family or a death in their family, they have seen or anticipate a significant increase or a significant decrease in assets, they have purchased a home, recently moved to the area, or they themselves are expecting a large inheritance.
Beginning the Process
Many times, individuals do not contemplate creating a will when they are young because they are not thinking far into the future. It is not uncommon for young individuals to not want to think that far ahead, but a last will and testament is meant to be an organic document. The document can be changed and modified while an individual maintains capacity.
If someone, while they are young, creates a last will and testament and then later gets married or has children, their document can be modified to accommodate those circumstances. The idea behind not creating a last will and testament because an individual is too young or an individual does not have enough money is not a good excuse because everyone’s estate could benefit from the creation of a last will and testament.
Role of a Wills Attorney
An attorney can assist with helping explain the laws of intestacy and assisting someone to get qualified to act on behalf of the estate. An attorney can also assist with creating an inventory, advising the executor of their fiduciary obligations, helping to review any legally enforceable debts, and making a distribution of the assets pursuant to the laws of intestacy.
Many times, clients will work with an attorney during their lifetime and then their families after they pass away. Sometimes, the benefit of that is the attorney will have a good understanding of what a client’s wishes were, and also have a good understanding of what the estate plan does. Other times, it is easier for a family because the attorney is often familiar with their loved one that passed away and has pertinent information and knowledge that has been collected from the client prior to their passing.
Working with an Attorney
Working with an attorney who can assist an individual in explaining the concepts and then in understanding what they are writing in a last will and testament can be beneficial. Many times, when wills are written by individuals without the assistance of an attorney, unforeseen issues can result. There are nuances to estate planning or to the language and the terminology that are missed that can result in additional administrative expenses or unintended consequences. An individual may not realize when they draft a last will and testament that this issue is not addressed.
A common misperception with regard to last wills and testaments is that they can be created even when someone loses the capacity. It is not uncommon for a person to seek the assistance of an attorney for individuals who have had a catastrophic event and would benefit from estate planning but no longer have the testamentary capacity to create any estate planning.
That is one reason why it is important to have a plan in place throughout a person’s lifetime in order to avoid having to make decisions in an emergency situation. But also, in that same emergency situation, it may be too late to make any decisions because an individual may lack the capacity to be able to make those determinations.