A news article in Forbes highlights the continued problems arising out of the estate of one of the most beloved figures of the 20^th century. When he was assassinated on April 4^th, 1968, Dr. Martin Luther King Jr. didn’t leave a Last Will and Testament. Since then, his estate has gone through numerous different legal challenges as his heirs have disagreed over the status and ownership of their father’s property.

These challenges continue as this year a new set of documents related to Dr. King have brought about a new lawsuit. The documents, owned by Howard Nelson Ballou, once belonged to Dr. King. They include handwritten letters, newsletters and other documents he wrote, as well as a handwritten letter to Dr. King from Rosa Parks. These documents came to be in Mr. Ballou’s possession because his mother, Maude Willimas Ballou, was Dr. King’s personal secretary in the 1950′s. Mrs. Ballou and her late husband had been friends with Dr. King and his wife, Coretta Scott King. Earlier this year, the Estate Of Martin Luther King Jr., Inc. – the corporation formed to handle his estate – filed a lawsuit in Mississippi to recover the documents.

The question of who is entitled to own the documents in question may come down a determination about what Dr. King’s intent was at the time he gave them to Ms. Ballou. Did he want her to keep them for storage or record-keeping purposes, or did he want her to have them as a gift? There appears to be no easy way to answer the question. Ms. Ballou is 86-years-old and claims that the documents were gifts, while little other evidence appears available to shed light on Dr. King’s intentions.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

If movies, novels and popular opinion are to be believed, no one ever receives anything from a will until the deceased person’s attorney gathers everyone in a room and reads the terms out loud. While this makes for good drama, it isn’t true. In fact, there are several common myths about wills.

Myth 1: The government will tax your estate to death, so you don’t need a will anyway. With all the uproar about death or estate taxes, few people realize just what these taxes are. To start with, the federal estate tax for 2011 only applied to an estate worth more than $5 million. Some states may have estate taxes that may apply to an estate that is less than $5 million.  But even so, they don’t take all your estate property, so there is still a lot to pass down.

Myth 2: My will has to be read. There is no law in any state that requires a Hollywood-type reading of a will. While a court has to determine if the will meets state laws, the executor of an estate is under no obligation to read the will to anyone as he or she completes his duties. You may include a reading clause in the will, but there is little reason to want to do this as it is a needless complication.

Myth 3: I can dictate my last will on my death bed. This is partially true. A small minority of states allow for oral wills when you are dying, but in most states oral wills are invalid.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

Often a living trust is used in conjunction with a will.  Both a will and trust can be used to distribute assets, but a trust also avoids probate, provides disability planning, and is an efficient platform for beneficiary trust shares.  Typically, trusts are more comprehensive than wills, and they are effective while you are still alive.

Why You Still Need a Will, Even if You Have a Trust

• You must use a will to appoint guardians for minor children.
• You must use a will to appoint executors.
• You should use a pour-over-will to distribute assets to your trust.

What’s a Pour-Over-Will?

A pour-over-will is a will with only one beneficiary, a trust.

While most assets should be funded (i.e. titled) in the name of your trust, sometimes assets are inadvertently or intentionally left out of the trust.  At your death, your pour-over-will will be used to pour any assets not in your trust, into your trust, through the probate process.

Proper Asset Ownership:  A Key to Success

Whether your estate plan is based on a will or a trust, it will only work if you own your assets properly.  Improper asset ownership is one of the main reasons estate plans fail.

• A will only controls assets in your individual name, without a beneficiary designation.
• A trust only controls assets in the name of your trust.

If you own your assets in any other way, it doesn’t matter whether you have a will or a trust, your estate plan will fail.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

If you’ve already created a last will and testament, there are certain times when you will want to go back and review the document to determine if any changes are necessary. If you decide to make changes to your will, you can do so by either creating a completely new will or by adding what is known as a codicil. Because laws that govern last wills and testaments differ between states, you should always consult an attorney if you believe you need to make a change to your will.

As long as you remain of sound mind, you can make changes to your will at any time. However, major life events that affect your family or beneficiaries typically require you to at least review your will, if not change it entirely. For example, if you created a will while you were single, you should typically change the terms of your will if you get married. Similarly, if you are married and subsequently become divorced or get remarried, it’s often best to review your will and change it to reflect your new marital situation.

In addition to a change in marital status, having a child or adopting a child should also prompt you to revise your will. In general, you are under no obligation to leave anything to your children, but if you create a will before you have a child and do not subsequently revise it, this may lead to problems in the probate process.

Other situations that may prompt you to review your will include a significant change in the amount of assets you own, the death of a potential heir or beneficiary, the death or incapacitation of the person whom you intended as a guardian or executor, or if more than five years have passed since you last reviewed the document.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

Many people put off the need for a will during their lifetime.  If you choose not to create a will, you may assume that your spouse will still be entitled to all of your assets.  The truth is, this may not be the case.  Take a look at the following information, to learn more.  If you’d like to make sure that you’re in control over how your assets are distributed, work with an estate planning attorney to create your will.  If you have any questions about how a will gives you control, contact an estate planning attorney.

Without a will in place, you’re not in full control over how your property is distributed.  If you choose not to create a will, it’s important to think about a few things.  This will help you get a better idea of how your assets will be distributed.

Do you own property jointly with another individual?  If so, this person will be given your assets after death.  This can be a one way to ensure that your spouse will be given certain property.  It’s important to carefully think through this ownership decision because there are pitfalls to joint ownership, even with a spouse.

Additionally, your state laws will determine how your individually owned assets are distributed after death, if you choose not to create a will.  You may assume that your spouse will get most of your assets, but this is likely not the case.  Many state laws, including Arkansas, ensure that children, even minor children, get a significant portion of an individual’s assets.

Take the time to handle your estate planning affairs so that you’re in full control over how your assets are distributed.  By creating a will, you can outline how you wish for your assets to be given away, making it possible for you to leave a large portion of your assets to your spouse.

If you have any questions, or if you’d like to create a will, consult with a qualified estate planning attorney.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

When you create your will, you have the opportunity to name your executor.  This person will handle all of your affairs after your death, including settling your estate.  So it is important to choose your executor, and back-up executor, with care.  You also need to make sure that your executor actually wants to serve; don’t make assumptions.  Take a look at the following information, to learn more.  If you have any questions, or if you’d like to discuss the duties of an executor, meet with an estate planning attorney.

Ask Your Potential Executor if He Wants to Serve

It’s important to avoid possible future issues by discussing your wishes ahead of time.  If you choose to appoint a certain individual as your executor, you should discuss this choice, outlining the executor’s many duties.

Explain all Executor Duties

In many cases, people aren’t prepared for all of the responsibilities that go along with the job.  It’s important to be honest about the duties that are expected of an executor.  Tell your executor that it’s okay to decline if it feels like too much.

It’s Okay for Your Potential Executor to Say, “No”

You may find that your chosen executor isn’t ready for the responsibilities.  If this is the case, you will need to rethink your decision.  No one should accept an important trusted helper role, such as executor, out of obligation or because they are embarrassed to decline.

Appoint a Substitute and Name Back-Ups

Take the time to think through other potential choices, including a back-up executor.  If you name an individual who declines to serve, you won’t be in control of how your affairs are handled unless a back-up is also named.

You never know what your potential executor will be going through at the time you die; sometimes people need to decline to serve because of illness, too many responsibilities, or a move.

Your estate planning attorney can help you prepare for a discussion with a potential executor.  With a little extra effort and care, you can ensure that you’re selecting the best executor, who will be willing and able to handle your future estate affairs.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

We certainly hope that our loved ones will accept our final wishes, but unfortunately, disagreements and old hurts can make an appearance during such an emotional time.  When someone is left out of a will, or feels they did not receive their fair share of an estate, they may contest the will based on one or more of the following:

• The testator, the person who had the will created, lacked the capacity to make a will.
• Another person had undue influence over the testator.
• There was fraud involved before, during or after the will was created.
• There was a mistake in the will – for example, another child was born after the will was drafted.

Who can file a will contest?  Generally, anyone who has a legitimate financial interest in the estate can challenge the will. The person’s financial interest must be considered to be more than speculative. In other words, you cannot contest a will if you were friends with the deceased and think he or she should have left you something. However, if you were not left anything in the will, but would be entitled to something under the state intestacy laws as an heir, then you would be in a position to challenge the will.  Why?  Consider what would happen if you were to win the will contest, the will would be found invalid and the estate would be distributed according to the laws of intestacy to the heirs.  If you would not receive a share under these laws, what would be the point of filing a will contest?

Proper estate planning can help reduce the chances of a will contest, and there are tools an estate planning attorney can use should you worry about a loved one challenging your will.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

If you’re beginning to think about your estate planning needs, you may be considering the use of a Will.  A Will allows you to prepare for the future in three ways.  If you’re just beginning your planning, you need to better understand how a Will works.  Take a look at the following information, to better understand this planning tool.  If you have any questions, or if you’d like to execute a will, contact an estate planning attorney.

What can a Will do?

A Will can accomplish many planning needs. With this important document, you can do the following:

• You can outline your wishes for after death property distribution

• You’re able to appoint a guardian for the care of your minor children

• You can appoint a personal representative (executor) to handle your estate affairs

A Will Keeps You in Control

A Will allows individuals to have control over the future.  It’s one of the most important estate planning documents that exists. If you don’t create a Will, you will have no control.  This means that your state laws and the court can determine important issues on your behalf.  Do you want someone else deciding how your assets will be distributed or who will care for your child? If not, you need a Will.

Why You Should Work With an Estate Planning Attorney

If you’re ready to draft your Will, it’s important to work with an attorney.  This will allow you to have a valid and legal Will that meets your needs.  Attempting to create your own Will may mean that you have an invalid Will, and that your wishes won’t be followed.  An estate planning attorney will be able to understand your state’s laws, so that the right document could be created.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

When you’re beginning your estate planning affairs, you may be tempted just to create a will.  While a will is a great planning tool that is especially important, there are many other planning devices to consider.  Take a look at the reasons below, to learn why your will is not the only document that you need.  If you have any questions, or if you’d like to draft a will, or any other document, contact an estate planning attorney.

• A will doesn’t allow you to plan for incapacity.  Unfortunately, medical emergencies can happen at any time.  It’s important to have the right documents in places, so that you can get assistance during your time of need and so that you’re able to have some say in your medical care.  A will is only effective if you’re dead; it doesn’t help with incapacity at all.
• All of the assets controlled by your will are subject to probate.  If you’re looking for a way to keep your assets out of the probate process, you will need to utilize other planning techniques.  This can make it possible to get some of your assets to your beneficiaries more quickly, while maintaining privacy and reducing expenses.
• A will doesn’t allow you to plan for the care of a loved one with special needs.  There are planning techniques that allow you to leave assets to a loved one with special needs.  This can ensure that the money is used appropriate, and that your loved one doesn’t lose his or her Government benefits.
• A will doesn’t help you during your lifetime.  It’s important to remember that a will is only useful after your death.  You should always consider the needs that you may have during your lifetime.  Whether you’re looking to plan for future financial needs, or want to protect your assets during your lifetime, you will need to take a look at other planning tools.

If you have any questions, or if you’d like to review your will, or other planning documents, consult with a qualified estate planning attorney.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.

If you ever move out of state, it’s important to review your will as well as your entire estate plan with an estate planning attorney licensed in your new state.  This ensures a valid and legal will as well as an up to date estate plan.

Many people completely forget about updating and then find that their plans don’t meet their current state laws or that out of state documents add unnecessary expense and complication.

Take a look at the information below to learn more about the importance of reviewing your will.  If you have any questions, or if you’d like to discuss your will needs, contact an estate planning attorney in your new state.

Each state has its own laws that must be followed when individuals create an estate plan or will.  While your current will may be effective in your new state, you may need to make some legal changes that will allow your will to function efficiently with your new state’s laws.

If you don’t take the steps to review your will, your will may not “work” in your new state.  A will “works” if it does what you want it to do.  Hiring two probate – estate planning attorneys, one in your prior state and one in your new state probably doesn’t “work” for you.  It’s easier and less expensive just to update.

It’s especially important to have your will reviewed if you haven’t looked at it in several years. This will allow you to make updates to meet your current needs as well as make sure that it follows your state’s laws.   Estate plans, including wills, should be reviewed and, likely, updated every three to five years.

If you have any questions, or if you’d like to review your will, consult with a qualified estate planning attorney.

Deborah Sexton Law Office, PA is a member of the American Academy of Estate Planning Attorneys.