How to Review the Will (or Family Tree)

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How to review the Will (or family tree).
Hi, Anthony again let's talk about how to review the Will
or the family tree if there is no Will.
Now the first question you want to ask,
well first let me start off by saying that this
does not replace the advice of an attorney
or seeking the council of an attorney but this is just
sort of a cheat sheet so you have at least
a ballpark sense of what's going on with the Will,
before you contact an attorney.
So the first question you need to ask yourself is,
is the Will valid?
Was the Will done correctly is it a legal binding document?
And here's some of the things you need to look at,
number one is it an original?
Sometimes you'll end up, if you'll look carefully
you'll realize that all you have is a photocopy
not an actual original signed document,
you need the original.
Number two, it has to be typed, it cannot be handwritten.
Some states are different, but in most states
it has to be a typed document
and handwritten Wills are only allowed in the most narrowest
of circumstances,
it's just highly unlikely it would be allowed
in your circumstances so just it needs to be typed.
Three is it signed and dated?
You'd be surprised I mean it sounds intuitive
that the Will actually has to be signed by the person
who made the Will but a lot of folks come in
with a Will that was prepared by an attorney
they paid for it but the person never signed it
and all that is, is a draft that's not a binding document
at all so it has to be signed and dated.
The Will has to be witnessed, most states require
two sometimes three witnesses
and they have to have signed the Will in the presence
of the person making the Will.
There have to be two or three witnesses.
Now this is something that's hard to tell from looking
at the document but was the person competent
when they made the Will, if the date of the Will
coincides with a time when the person was you know
hospitalized or suffering some lack of competency,
dementia Alzheimers something like that then you might
have something to look at that might be cause to
contact an attorney to see if there was a lack
of competency.
And lastly was it a do it yourself Will,
or was it supervised by an attorney?
And the reason for looking at that is because
a do it yourself Will, will come under much closer scrutiny
by the court versus if it was prepared
by an attorney right or wrong, whether or not you agree
with this the court will give it a lot more leeway
and a lot more sort of benefit of the doubt
when it reviews it for you.
Okay now that you've taken a look at whether or not the Will
is valid you want to know who inherits?
You want to take a look at who inherits because it'll
help you understand whose gonna be involved,
whose contact information you might need to gather,
and figuring out oh is this person even alive, right?
So with a Will you know Wills can be highly customizable
and different but what you want to focus on for most Wills
is two areas, specific gifts and the residuary gift.
I'll describe that, specific gifts are pretty
straightforward, $10,000 to Bob.
My Cadillac car to John.
Very specific items or dollar amounts.
And then every Will should have what's called a residuary
provision, a catch all whatever was not specifically
dealt with in the specific gifts, specifically specific,
is given out in percentages.
Whatever's left is carved into
percentages to certain people.
It can say perhaps and all or 100% of my residuary
to my spouse, or my residuary 50-50 you know half
and half to my two kids something along those lines.
If there is no Will or if the Will is invalid
then you apply the state's default inheritance laws
often called intestacy and it usually breaks down
something like this, I'll give you the New York example.
It depends on who the surviving family members are.
If there's a spouse all to the spouse,
if there's a spouse and kids, the first 50,000 off the top
to the spouse and then whatever's left half to the spouse,
half divided equally amongst the kids.
And then once you get into nieces, nephews,
aunts and uncles it sort of gets pro rated
depending on whose the closest relation.
You can talk to your attorney about the exact calculation.
And lastly what you want to figure out when you're
reviewing the Will or the family tree is, who's in charge?
And this is again similarly this is important because
you want to know who needs to be contacted,
figure out whose living, whose still in the United States
things like that, now if there's a valid Will,
the person whose in charge might be the nominated executor.
It'll be a section in the Will that says I nominate,
and appoint my spouse, or my brother John to be the executor
of my Will and if he's not available maybe a successor
a backup and maybe even a backup after that.
If there is no Will or if the Will is invalid then again
the state has default inheritance laws called intestacy,
and it will typically be similar to who inherits
based on who is the closest family relation.
Now what I need to point out is neither of these things
are binding these are guidelines, if for whatever example
the named executor or their next of kin is not able to
is does not want to does no have the time to be
the executor then that's something that you
can cooperatively opt out of and choose somebody else
to be the executor instead whose lifestyle
or whose needs better suits the role
of executor for the family.
So that's our summary of how to review the Will
or the family tree, hope you found this helpful
I'm Anthony New York Probate Attorney
and Executor, take care.
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How to Review the Will (or Family Tree)

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