SOME GENERAL THOUGHTS ON MAKING WILLS Caveats This series of thoughts on making wills are intended to help the reader understand the value of making a will, and in no way is intended to be a guide for any specific will. On the contrary, the author urges anyone who wishes to make a will to consult with a qualified lawyer and have the lawyer use his skills to write your will. The reader should also understand that each of the fifty states have their own rules for drafting wills. This author received his training in the State of Georgia, and if any law is referred to it will be the laws of Georgia. Most all states have some common ground, such as the maker of a will must be mentally competent and must have reached a certain age. The author will not attempt to show the difference among the many states, but will caution anyone living in Louisiana that many of this state’s laws are derived from French law. The other states generally followed the laws of Great Britain in initially formulating their laws. Particular attention must be given to laws as they exist in Louisiana when making a will. Because Louisiana is such a special case, this series of articles will not attempt to discuss the Louisiana Law on wills. One other area that these articles will not attempt to discuss is the subject of estate planning. One does not have to worry about estate planning unless his or her total estate is more than one million dollars at the time of his or her death (at least that will be the law beginning on January 1, 2011.) The whole area of estate planning is in a state of flux until then, and anyone expecting his estate to be equal to more than one million dollars should absolutely consult a lawyer specially trained in estate planning. As a side thought, the current administration is trying to eliminate taxes on any estate, no matter how large, and there’s a lot to be said in favor of this proposal. One other area of caution is to avoid folks who are selling “Living Trusts.” The pitch given by the proponents of living trust is that they help you avoid probate. There is no need for anyone who has a modest estate to avoid probate, since probate, particularly in a state like Georgia, is very inexpensive. For large estates, the problem of probate becomes very expensive in a state like New York. Thus, in states like Georgia and Alabama (I think), probate is rather inexpensive, if a relatively good will has been prepared. Generally, folk who are selling living trusts are only interested in selling you insurance. First Principles We should write a will because God expects us to be good stewards over the property He has entrusted in our care. There is a corollary to this rule. In Malachi, God reminds us that that we have failed in our tithes and offerings to him. Many of us think we are pretty good tithers, but we tend to overlook giving God generous offerings in addition to our tithes. We can make up for some of our failures by leaving our local church an offering in our wills. Remember that we came into the world penniless and we certainly can’t take it with us, so your will is a great way to make up for missed opportunities. Some Basic Rules Rule No. 1. Be specific with your gifts. One of the worst wills ever written simply stated, “All to Mother.” What is wrong with this will? First, who is his mother? Second, if you can identify the mother, is she living? If she is not living, who inherits? What if his birth mother gave him away for adoption, which mother inherits? This situation could have been avoided if the maker of the will had simply stated: ”I leave all of my property to my mother, Mrs. A. J. Smith of 110 Altercation Way, Piney Woods, Georgia. If my said mother does not survive me, I leave my property to my brother, Joe Blow Smith, 500 Green Peace Ave, Harvard, Georgia. Further, if said Joe Blow Smith does not survive me, I leave all of my property to said Joe Blow’s children in equal shares.” Rule No. 2. Always name a contingent beneficiary in any gift left to someone in your will. This rule, really, is a corollary, to rule No. 1. The reason is obvious, since one or more of your beneficiaries may predecease you. In the above case, we examined a situation where the Mother might predecease her son. If no contingency is given in the will, the property will be distributed to others according to the laws of descent and distribution of your particular state, and your wealth may be distributed to people whom you have no use for. The above example illustrates not only specificity, but also contingency. Another item of contingency could have been expressed in the solution to the “All to Mother” example. Instead of just leaving property to Joe Blow’s children, it could have been phrased, “to said Joe Blow’s children in equal shares who are alive at the time of my death.” We mentioned, above, the laws of descent and distribution.” These laws which vary from state to state are rules which take over the will when the named beneficiaries have predeceased the testator (or maker of the will), and no contingent beneficiary has been named. Even so, contingencies are limited. You cannot control your property forever by continuously naming contingent beneficiaries. If you try this you will violate the “rule against perpetuities.” This is a rather technical rule, but basically the rule is that you cannot name a possible beneficiary who is born 21 years after the death of a named beneficiary who is identified in the will. A good attorney will make sure that you don’t violate this rule.
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