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Before you start, get your client to fill out a questionnaire. This satisfies the requirement that the client knows his or her assets and heirs - a prerequisite to making a valid will in most states. Attached is a sample questionnaire for your reference. (See Exhibit A). You should keep this on file in case the will is contested.
Get your client's total estate value from the questionnaire. If the total value is over the amount excluded for federal and state estate taxes, advise your client that the estate could be subject to such taxes and a more comprehensive estate plan should be considered. 3. Discuss with your client the duties and responsibilities of the Executor ("Personal Representative"). Help your client choose a Personal Representative that can do the job and who lives close enough to the client to do it conveniently. Choose at least one backup Personal Representative in case the first choice is not available.
Discuss with your client the duties and responsibilities of the Executor ("Personal Representative"). Help your client choose a Personal Representative that can do the job and who lives close enough to the client to do it conveniently. Choose at least one backup Personal Representative in case the first choice is not available.
Put in a "smart tax clause" that instructs the Personal Representative to apportion taxes based on the asset value. This is discussed at length by Daniel B. Evans in his article "Tax Clauses to Die For," in the July/August 2006 Probate & Property Journal: http://www.abanet.org/abanet/common/login/securedarea.cfm?areaType=premium&role=rp&url=/rppt/mo/premium-rp/publications/magazine/2006/ja/Evans.pdf
Authorize a Personal Property Memorandum in the Will (a handwritten signed list to bequeath personal property) if your state allows this, and tell your client how to use it. I always give the client a written instruction sheet with the Will (See Exhibit B).
Give the Personal Representative the authority, in the Will, to sell property and to use discretion as to the terms of its sale. If you forget to give the Personal Representative this power, the Personal Representative will have to have a hearing in probate court in order to sell property. In general, you should draft the Will to give the Personal Representative broad powers to dispose of assets and to adjust bequests as deemed necessary.
After you list specific bequests, include a residue clause. Unless your client plans to die tomorrow, there is always a possibility that there will be additional assets at death.
As a corollary, always be ready to explain the work you do to colleagues, professionals, friends, or even a new person you meet in the real world. Short examples of your work are effective marketing tools. A lay person may not know what "employment litigation" is, but will know what you mean when you say "I handle lawsuits between employees and employers related to overtime pay."
Help your client think through some contingency scenarios. What if the client's spouse dies first? What if one of the client's children dies before the other? Plan for at least a few contingencies in the Will, because the client may not prefer the statutory plan.
Have the client name a Guardian for any minor children and name a backup Guardian as well, just in case.
Look at the probate code to make sure you have the Will executed properly with the proper number of witnesses, special acknowledgments that make the Will harder to contest, and other formalities such as notarization. Many state probate codes have sample acknowledgements that you should use.
|Full Name||Date of Birth||Gender||Adopted, stepchild, previous marriage|
|Do you own any real estate?||Yes:||No:|
|Do you own any stocks or bonds?||Yes:||No:|
|Do you have life insurance?||Yes:||No:|
PERCENTAGE or AMOUNT
PERCENTAGE or AMOUNT
EXECUTOR ("PERSONAL REPRESENTATIVE")
The Executor ("Personal Representative") is the person appointed by you in your Will to handle the paperwork and administration of your estate. This person will inventory your assets, pay debts and expenses from your estate assets, distribute your estate according to your Will, and submit an accounting to heirs and the Court. This person should be an individual that you trust implicitly, as well as a person you believe will faithfully carry out the responsibilities associated with being your Personal Representative. This person should be notified and agree to serve before being appointed.
GUARDIAN FOR MINOR CHILDREN
If you die leaving your minor child(ren) with no surviving parent, your child(ren) will require a Guardian. Courts ordinarily honor the parent's choice of Guardian named in a Will. You can separate the physical custody and financial responsibilities of Guardians, if you choose.
Living Will and Durable Power of Attorney for Healthcare:
A Living Will is a legal document that instructs medical personnel not to use artificial life support, or to discontinue its use, if you become terminally ill and are incompetent to make your own decisions.
A Durable Power of Attorney for Healthcare is a legal document that appoints someone to make healthcare decisions on your behalf if you are incompetent to make such decisions, even if the incapacity is temporary. A Durable Power of Attorney lasts for an indefinite time, but you can revoke it by following the appropriate procedure.
Because decisions related to your life and healthcare are so important, these documents must be legally correct and formally executed.
Are you interested in having a Living Will or a Durable Power of Attorney for Healthcare? Yes No
Who do you want to designate as your Attorney-in-Fact (person to make decisions on your behalf) for healthcare decisions?
Second choice as your Attorney-in-Fact for healthcare decisions, if the first choice has died before you or is otherwise unavailable to serve
Durable Power of Attorney for Property:
A Durable Power of Attorney for Property allows another person to sign documents and make decisions on your behalf. This document can be written with an expiration date so that if you are temporarily out of town someone can sign documents for you for a limited time. Alternatively, this document can be written as a permanent document without expiration so that if you are incapacitated because of a physical or mental illness another person can sign documents on your behalf. A Durable Power of Attorney lasts for an indefinite time, but you can revoke it by following the appropriate procedure.
Are you interested in having a Durable Power of Attorney for Property? Yes No
Who do you want to designate as your Attorney-in-Fact (person to make decisions on your behalf) for property decisions?
Second choice as your Attorney-in-Fact for property decisions, if the first choice has died before you or is otherwise unavailable to serve
GENERAL DURABLE POWER OF ATTORNEY
YOUR ATTORNEY-IN-FACT SHOULD SIGN DOCUMENTS AS FOLLOWS: (ATTORNEY-IN-FACT'S NAME), ATTORNEY IN FACT FOR (PRINCIPAL'S NAME, i.e., YOUR NAME)
[EXAMPLE: Howard Rourk, as attorney-in-fact for Ellsworth Toohey. In this example, Howard Rourk is the attorney-in-fact, and Ellsworth Toohey is the principal.]
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