Last Will and Testaments - Of all of the documents that we prepare, there is no doubt that the most commonly requested document is a Last Will and Testament. If fact, most people believe that all they require is a "simple Will." However, today we live in a very complex world and therefore, depending on a clients' individual circumstances, a Last Will may or may not be the most important estate planning document.
Several points regarding Last Wills that you should know:
Question: Having a Last Will and Testament avoid the probate court system, right? Answer: NO. A Last Will and Testament only becomes meaningful upon the death of the individual. At that time the person that you nominate as an Executor will only become the "Executor" if he or she petitions the probate court to: admit your Last Will into the probate system; and 2) appoint that person as the Executor. Therefore, probate court is at the heart of the process to pass your assets to the intended beneficiaries.
Question: Ok then, so a Last Will doesn't avoid Probate and therefore I do not need one, right? Answer:THAT DEPENDS. When evaluating what "makes sense" for a client, we evaluate the amount and type of assets a client owns, how the assets are titled, the clients' marital status and family structure, special issues in the family (i.e. disabilities of children), as well as the goals and objectives of the client.
Legal Point #1. Depending on how an asset is titled, without a Last Will leaving assets to the surviving husband or wife, it is possivle that the surviving spouse would have to "share" the assets with children of the deceased spouse. According to the Illinois statute, without a Last Will, the assets are distributed 50% to the spouse and 50% to the children.
Legal Point #2. If a person has a Last Will then it is likely that "surety" on the bond will not be required by the court. A surety is insurance that is required when the person seeking to become the "legal representative" without a Last Will. The insurance is based on the value of the assets in the estate and can amount to $1,000 or more per year. Therefore, it can be said that in addition to the other benefits, having a Last Will often saves you money. Why? A basic Last Will and Testament will often cost between $400 and $600 and that amount is usually less than the cost of one year premium on a surety bond.
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