The simple will is the most commonly used estate planning document, but many people settle for wills unnecessarily. In this post, we will provide the basics in an effort to raise awareness so you can make informed decisions.
Core Requirements
A simple will can be executed by any adult that is of sound mind. In order for a will to be valid in the state of Connecticut, the document must be signed in front of two witnesses, and the witnesses must sign it in the presence of the testator.
You are not required to get a will notarized, but there is a reason why this can be a good idea, and we will explain it in the next section.
Probate Process
If you use a will to state your final wishes, you name an executor in the document to act as the estate administrator. The executor would not be able to proceed independently after your death.
Under the laws of our state, the executor would be required to admit the will to probate, and the court would provide supervision during the administration process.
There is a proving of the will during probate, which will involve the court contacting the witnesses to the signing of the document. If the will has been notarized, it would be a “self-proving will,” and the court would not seek affirmation from the witnesses.
Creditors are notified during probate, and they are given 150 days to come forward seeking satisfaction. The executor will open an estate bank account so they can pay final debts, and they will identify and inventory the assets and prepare them for distribution to the heirs.
When everything is in order to the court’s satisfaction, the estate will be closed, and the executor will distribute the assets to the beneficiaries in accordance with the wishes of the decedent.
Will Challenges
It is possible for someone to come forward during probate to challenge the validity of a will. Acceptable grounds include improper execution, fraud, incapacity, and undue coercion. These terms are largely self-explanatory, so we will not elaborate here.
A Will Can Be Revoked or Changed
The term “last will” is actually quite literal. Estate planning should be viewed as an ongoing process, because circumstances will invariably change over time. If you create a will today, you can be in a different place at some point down the road, and adjustments will be necessary.
When it comes to changing a will, the best way to proceed is to destroy the original will and create a new one from scratch. However, if you want to make a very minor change, you can add a codicil. This can be viewed as an amendment of sorts.
There Are Alternatives
A simple will is really not the best choice as an estate plan centerpiece unless the situation is extremely simple and straightforward. The probate process that we looked at will take 8 to 18 months in most cases, and no inheritances are distributed during this interim period.
Probate expenses include court costs, the executor’s payment, liquidation and appraisal expenses, and potential legal and accounting fees. When you add in the incidentals, the expenses will typically consume between three and seven percent of the estate.
Another drawback probate is the loss of privacy. The records are available to the general public, and this information can cause hard feelings among interested parties.
When you use a will, you would be leaving direct, lump sum inheritances with no asset protection or strings attached (unless you include a testamentary trust, which is another subject). This is disconcerting if you would like to include safeguards in a perfect world.
In fact, this perfect world does exist in the form of a revocable living trust. If you use a living trust as the centerpiece of your estate plan, you would act as the trustee while you are alive and well.
After your passing, the successor trustee that you choose when you create the trust would distribute assets in accordance with your wishes outside of probate. The trust would become irrevocable, and the beneficiaries and their creditors would not be able to access the principal.
You could instruct the trustee to distribute limited assets incrementally to prevent extravagant spending, and the exact details would be entirely up to you. When you understand the benefits, you can see why living trusts are very widely utilized.
Take Action Today!
We are here to help if you are ready to put an estate plan in place. You can send us a message to request a consultation appointment, and we can be reached by phone at 860-548-1000.
Mr. Nirenstein is licensed to practice before the courts of the State of Connecticut and the United States District Court. He is a member of the Connecticut and Hartford County Bar Associations, and the Estate and Probate, Elder Law, Business Law and Real Estate Sections of the Connecticut Bar Association.
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