Legally Speaking: Choose your representative well, or that will could get tied up in trouble

By B. Scott Skillman

Scott is an Indiana attorney in his 33rd year of practice. He is a member of United Hebrew Congregation and proud father of two children. Scott reminds us his columns are intended for informational use only and should not be considered “Legal Advice.” He believes everyone should feel comfortable asking questions of their attorneys. “There are no bad questions — only vague answers.”

This installment continues my series about planning for final wishes and the factors people commonly consider when making such plans.

Previous columns covered powers of attorney and healthcare directives/living wills. Both these tools help carry out one’s wishes while alive and well or perhaps incapacitated.

I shift my focus now toward planning how to carry out one’s intentions after one passes.
Today, we’ll address wills in Indiana, and what they’re meant to accomplish.

What is a “will” and what does it do?

A will is a statement issued by a person prior to death to guide an executor in the disposition of one’s estate.

The will provides directions for an individual to carry out the final wishes of a person who has passed away.

In Indiana, a will can exist in a form as simple as a handwritten note on a napkin. But we don’t recommend such a document.

In Indiana, a will can exist in a form as simple as a handwritten note on a napkin.

We don’t recommend such a document, as it would create issues of proof and likely result in a lengthy court case.

More commonly, a person hires an attorney to create a document that will be clearly labeled as a will and meets statutory requirements to be self-proving.

People ordinarily use wills when they own property they would like to see transferred in a certain way to certain individuals.

Bequests direct the transfer of property

The most obvious example would be with a “bequest.”

A bequest is a direction to transfer a gift or a certain item of personal property to a certain person.

That item could be jewelry, silverware, pictures, cash money or anything one would want to be assured a particular person will receive.

Bequests can circumvent squabbling over who receives a family heirloom.

Bequests help avoid fights by survivors over treasured or valuable items. As these items often carry value beyond mere cash value, bequests can circumvent squabbling over who receives a family heirloom.

Wills can create a record of a person’s intentions and assist a court in deciding how to disburse assets and guardianships.

A court is the final decision maker but will follow the intentions of a person to the extent it can determine the person’s intentions. Thus, we encourage a clearly written instrument!

Update a will to meet changing circumstances

Life changes occur with the passage of time, and a person should review his or her will to account for those changes. Sometimes, tax laws may change, and estate laws will occasionally see subtle changes as well.

For example, does the person have a spouse? Are there minor children involved? Who will gather up the assets and carry out the person’s intentions with court approval?

An experienced estate attorney will know which questions a will must answer and offer suggestions to accomplish that task.

Are there charitable gifts to be made? Might there be tax consequences? Is the expected estate large or small?

One must answer these questions while making or reviewing a will, and I strongly recommend a qualified attorney assist in the process.

An experienced estate attorney will know which questions a will must answer and offer suggestions to accomplish that task.

Although the process of drafting a will is not complicated or particularly time-consuming, preparation for the drafting can take time. Thus, by preparing in advance, one can save considerable time and expense.

Pick a good personal representative

Picking a person or a team to act as “personal representative(s)” is a crucial start.

The personal representative is charged with carrying out the intentions of the deceased, and may do so with great discretion. It is best to select a highly trusted person for the role, and that person should understand early on his or her task in executing the will.

To avoid conflict among interested parties, some people select co-representatives.

The appointment only becomes official after the will writer dies, and the personal representative can decline the role even at that critical stage. That is why I urge pre-need approval by the individual selected as personal representative.

Choose a personal representative judiciously. To avoid conflict among interested parties, some people select co-representatives. But this can lead to paralysis if the co-representatives disagree or do not work well together.

Next: Breaking down the parts of a will.

Previous columns in this series

Part 1: Let’s discuss simple steps to plan for estate administration

Part 2: What is power of attorney, and when do we need it?

Part 3: Medical power of attorney is fine, but hold that conversation with your doctor

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