Wills, Probate and Trusts For Writers

An article I wrote for a writers newsletter…

Remember all the black and white movies with the gathering of the grieving family as the stodgy old lawyer read the will of the deceased.  Not necessary.  Darn, it made for an easy assemblage of suspects.  Oh well so what’s a writer to do?  Get the facts straight and use it to your advantage.

What is a will?  It is a legal document that determines who gets what when a person dies.  What are the requirements for a legal will?  There are variations from state to state, but generally, it must be written, signed by the person whose will it is and witnessed (the number depends on the state).  The person must be a legal adult and mentally competent, (sound mind).

Who can draft a will?  An attorney can and should (sorry but really there are so many things that can go wrong).  A person, though, can write their own will using forms and copying the language but remember an invalid will is useless.

A person can handwrite a will and sign it.  MUST SIGN IT!!  This is a holographic will.  Just make sure to date it.  Unless of course that adds to the plot, for example when two wills are found.  Which one is the newest and thereby the last will and testament, or is the hand written document a forgery?  Or is it a codicil?

Codicil, you say, what’s that?  A codicil is an amendment to a will.  It changes a portion of a will without altering the rest.

If someone dies having a valid will what happens next?  Probate.  Probate is the legal process by which title in property is transferred from the deceased to the heirs.  As a legal process, it requires filing in Probate Court, formal rules must be followed and fees must be paid.

Who are heirs?  Raise your hand if you have heirs.  Put it down and hang your head — you’re not dead yet, you can’t have any heirs.  Only dead people have them.

Heirs are the children, grandchildren and spouse if still legally married at the time of death.  Most states require probate when the value of an estate meets a set minimum.  An estate is the legal term for the assets of a deceased.

If the will determines who gets what, why is probate necessary?  A probate proceeding changes legal title to the assets from the deceased to the person inheriting them.  Probate allows creditors to present claims, the payment of debts, the marshalling (gathering) and distribution of the assets.  Probate is a public process.  Notice is given to all the heirs even the ones excluded by the will.  A death notice is placed in the local newspaper.  There are court fees to file documents and probate referee fees to value the assets.  All documents filed in court are accessible to anyone. YES, TO ANY ONE. The hearings are open to the public.  Talk about airing dirty laundry, how’d you like if your neighbors or your worst enemy could obtain a copy of your will after you die.  Hey that sounds like a good plot twist.

What happens if there isn’t a will?  Each state has a mandated way of dividing the estate.  It’s called intestate succession.  Basically meaning a mandated line of succession based on familial relationships.  For example, if there are children or a spouse, they receive the assets.  Parents are next in line, if living, if not then siblings.  If there isn’t anyone left, then the assets escheat to the state.  Whoa, what the heck does that mean?  The state gets everything.  Check your local listing – jurisdiction (varies state by state) – to determine how intestate succession is determined where you or your characters live.

The fertile ground for storylines is the will contest, right?  Not really.  Most wills have what are called ‘no contest’ provisions that prohibit a person from disputing a will on pain of being disinherited (receiving nothing) or sometimes only receiving a dollar.  However allegations of fraud, duress or undue influence are different, but they can entail costly litigation and entangle the assets for the duration of the lawsuit and may even use them up.  But, that may make for a good story.  So are wills still used today?  Yes, but most people also have trusts.

What’s a trust, revocable or irrevocable?  How is it different from a will?

A trust is a legal document that like a will determines to whom the deceased’s assets go.  Instead of heirs, people receiving assets under a trust are called beneficiaries.  A trust however is a private document and probate is not required.  Remember the old saying that you can’t take it with you.  Well it’s true, but you can control it after you die.

Unlike a will, a trust controls what happens after death to the assets.  A trust can create other trusts after death.  A parent’s trust could state that upon their death, another trust is created for their children.  This children’s trust operates to dole out the assets incrementally.  The kids receive a certain amount at age twenty-five, some more at thirty-five and the rest at fifty or even the rest to the grandchildren.  As long as certain time limits are followed, called the Rule against Perpetuities.  I’d explain that except as a court once stated, even trained professionals have a hard time understanding how it works.  I kid you not a court actually said that.  Suffice it to say, a trust can’t last forever any more (yes they used to and some still do because they are grandfathered in – legally allowed to go on).

A trust is administered by the Trustee, who is designated in the document.  The Trustee is usually the person who owns the trust during life, then after death, the person designated. The Trustee can be a friend, relative, bank or lawyer, just about any one.  See the possibilities?

Why use a trust?

Trusts are used to insure privacy and exact control.  They are one of the most widely used estate planning tools.  Don’t leave home or die without it.  Just think of the story plotting possibilities.

Oh yes, about revocable and irrevocable trusts.  A trust can be revocable, which means the person making it (Trustor) can change it at any time.  An irrevocable trust cannot be changed, and usually has another person named as the Trustee.  Sometimes a trust is revocable during a person’s life then irrevocable once they die.  Why?  Complete control while alive and after death, without anyone else changing what you want done.  How’s that for megalomania.  And much fodder for writers.

All is not lost for wills though.  A pour-over will should always be used in conjunction with a trust.

It is a basic will that says if any property is not included in the trust, it will be made a part of the trust and subject to its provisions.  It’s a stop-gap instrument to prevent the inadvertent leaving out of property that should have been in the trust.  Why would this be needed?  In order for the trust provisions to have effect, the assets must be owned by the trust.  Title to homes, cars, bank accounts or stock shares must be in the name of the trust, as in the ownership designation of The Jane and John Doe Trust.  People forget to do so after creating a trust or when acquiring new assets or refinancing their homes – you get the idea.

Pour-over wills also include provisions that in case a trust fails (for legal reasons) then the trust provisions will be deemed part of the will and the assets will be administered under the provisions of the trust.  The estate would still have to be probated, but at least the wishes of the deceased would prevail.  A pour-over will has no other purpose.

Hey wake up I’m almost done.  Nothing in this article will be construed as giving legal advice or create a binding attorney-client relationship between any and all parties or anything else that may make me liable to the reader for any information herein or not herein, resplendent legalese, fine print, etcetera etcetera, etcetera.