Drafting a will is just the beginning of estate planning; it must be complemented by other key documents like trusts, power of attorney, and living wills to ensure the testator’s wishes are fulfilled. Executors should also focus on avoiding unnecessary taxes and preventing will contests, particularly in cases involving complex family structures or unknown heirs.
Drafting a will is a crucial step in estate planning, but it’s just the beginning of the process. Making the document admissible in the probate court and achieving the testator’s wishes is a journey that involves more than just drafting a will.
You also need to work on the other essential documents, avoid unnecessary taxes on the estate, and reduce chances of will invalidation and contestation during probate.
Throughout our services over the years, we have identified crucial steps that estate planners and executors must take to ensure they execute the will seamlessly.
This guide focuses on three key areas that will make or break the last will.
Work On Other Estate Planning Documents
Besides the will, other estate planning documents help safeguard the testator’s legacy and ensure their wishes are honored. The three crucial documents you must also consider after drafting a will include Trusts, Power of Attorney, and Living Wills.
Trusts
Trusts are legal contracts where the testator transfers assets to beneficiaries but retain control of when and how they are distributed. Unlike wills, Trusts do not go through the probate process and automatically pass to the designate beneficiaries at a set time.
For example, the grantor may decide to allocate trusts to their minor children and get to receive them once they attain a certain age. Similarly, the grantor may use trusts as a clever way to have beneficiaries receive their inheritance quickly and more privately than through the will.
An estate probate attorney is best suited to advise you on the best type of trusts as well as benefits and considerations based on the circumstances.
Power of Attorney (POA)
A power of attorney is an authority that the testator gives to a designated individual to make decisions on their behalf. This right can be given to a trusted individual to oversee specific matters such as finances and health.
A POA for healthcare or healthcare proxy is an agent who makes final decisions if the testator becomes incapacitated. The testator must create a signed document appointing the trusted individual and specifying their mandate in accordance with state and federal laws.
Living Wills
As the name suggests, a living will is a record of wishes when you’re alive. Unlike the last will and testament that is executed after death, the living will details your preferences for medical care. It’s a crucial advanced healthcare directive that outlines how you should be treated in times of crises and appoints healthcare proxies.
These advanced healthcare directives also come as a relief to the family that doesn’t want to argue or fight over your healthcare suitability, termination, and continuation.
Be sure also to include the Health Insurance Portability and Accountability Act (HIPAA) authorization when submitting the advance directive to help the healthcare proxy quickly access your medical records.
Avoid Unnecessary Taxes
Estates are subject to taxes such as gift tax, inheritance tax, and estate tax. The IRS requires an estate that surpasses $13.61 million at the time of the testator’s death to pay an estate tax to the federal government. This tax is paid by the estate and not the beneficiaries. Below are the criteria to ascertain the estate value and its tax obligation.
- A professional appraiser determines the total market value, including gifts presented during the testator’s lifetime.
- Subtract deductions and credits.
The estate could also be subject to the inheritance tax if it’s in New Jersey, Nebraska, Iowa, Pennsylvania, Maryland, or Kentucky. These are the only states that impose inheritance tax to be paid by the heirs based on the value of their share. Surviving spouses are exempt from this tax.
With the help of an attorney, you can understand these taxes in your state and wisely review your draft will. A tax professional will surely advise on better arrangements on your will to comply with the IRS and avoid unnecessary liability.
Avoid Pitfalls When Executing the Will
Have you signed your will according to state laws? Is it updated to reflect current circumstances? Have you stored it safely? Is it backed by solid evidence? These are some of the hidden or unsuspected dangers threatening the execution of wills.
While the estate planning attorney should provide the necessary guidance on state laws and will signing and storage, you need a professional probate genealogist to help you execute the will.
Some of the circumstances necessitating the assistance of an investigator include locating crucial records to present in court, testifying, and dealing with a complex family structure, unknown or missing heirs.
Complex Family Structures
For a family with a complex structure, such as adoptions, stepchildren, or estrangement, the professional genealogist helps construct an accurate family tree and table of consanguinity to support the testament. A complex structure is a major factor contributing to will contests and invalidation, hence the need to consider detailing the family structure as you draft the will.
If, for example, the will names an unknown heir, either born out of wedlock or estranged, as a beneficiary, other known heirs may contest once the will is made public, hence the need to have all the evidence and supporting documents handy.
Working with a forensic genealogist will not only locate and notify these unknown heirs but will also compile the necessary evidence to satisfy the court.
Court Presentation
Our professional researchers will also compile a comprehensive report and the necessary documents to demonstrate relationships and support the will. If need be, they will be ready to appear in court to testify and help with any queries regarding heirship.
HeirPros Can Help You Execute a Will
As the executor of a will or an attorney representing the executor, you should assist your client in these key areas that can make or break the last will and testament. Ensure there’s a legal power of attorney, health care proxy, and living Will.
Most importantly, reach out to HeirPros if you need help finding missing heirs, establishing heirship, or executing the will. We offer free consultation and a flat fee based on the nature of your research, not the value of the estate.