Redoing (or Redoing) Your Will
You Need a New Will
Almost everybody who's just finished a divorce needs to execute a new will. If you didn't have a will, you need one now. If you had one before, it's probably out of date now.
Executing a will is the easiest thing in the world to put off. Nobody wants to think about their death. I know I sure don't. But you really need to do it.
Why Do I Need a Will?
Don't worry. If you die without having executed a will of your own, the Alabama legislature has already written one for you. If you’re married, half of what you own goes to your spouse, and the rest to your children. Whoever looks after your affairs (and Alabama has already worked out how they should fight about who that will be) will probably need to post a bond and report in regularly to the court. That usually means they'll need to hire a lawyer.
The cost of the bond, the cost of the reporting, and the cost of the lawyer will of course all come out of whatever money you leave. Whatever is left will (you hope) trickle down to your descendants or family.
You need a will so you can cut out all that extra cost. You need a will so you can decide who handles everything. And if you have children, you need a will to have any say in who looks after them after you're gone.
Let me say this as clearly as I can: You need a will.
You May Not Need a Lawyer
When Do I Need to Use a Lawyer?
There are some cases where it would be a mistake to do a will without using a lawyer. Here are the three main ones:
· When you have a large estate. See the information on estate taxes below.
· When you want to disinherit somebody. If you’ve made up your mind that one of your children or your new spouse should get nothing, that’s your prerogative. Just know that your will can be challenged, and the expenses of responding to the challenge will reduce your estate. A lawyer can help with steps to make a challenge less likely.
· When you want to take children away from their natural parent. There may be good reasons for doing this, but it’s devilishly difficult to do. Again, a lawyer can help reduce the chances that a challenge would be successful.
If you understand all this and still want me to help you with your will, here's some information about how that works.
What Do I Do With My Will?
The original of your will is important. It's much easier to prove the will in probate if you have the original. Proving a copy is a pain. The best place for the original of your will is a safe or safe deposit box. If you use a lawyer and the lawyer wants to hang on to it, that's okay.
Wherever you store the original, here's the most important step you can take to help your executor. Make several copies of the will. Give one copy to your executor, of course, as well as a copy to two or three friends or family members whom you trust. With each copy, include a note describing where the original is filed or stored. That way, even if nobody remembers where the original is, someone will be able to find his or her copy, and they'll be able to use the information to help find the original. Your executor will be grateful, and your heirs will be richer.
What About Estate Taxes?
You probably don’t need to worry about them. As a rough guide, estate taxes probably aren't an issue unless your total estate at your death will exceed $1,000,000.
The one mistake I see people making here is to forget to include the value of their life insurance. If life insurance payable at your death would take your estate above $1,000,000, you need to get some help. And don't use just any lawyer. You really need an estate planning expert.
Expect to pay at least a couple of thousand dollars for a thorough estate planning package if you have simple affairs. It could run several times that if you have complex matters like a family-owned business, considerable wealth, or partnership interests. Don't scrimp here. This is important. If you have a large estate, you need help with estate taxes.
Making Your Will Self-Proving
If you use the language below, Ala. Code § 43-8-132 says your executor won’t need to produce the witnesses to the execution of your will. This could save your estate money and time.
This is the language needed at the end of your will for it to be “self-proving” in Alabama:
I,_________, the testator, sign my name to this instrument this___ day of ______, 20___, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am 18 years of age or older, of sound mind, and under no constraint or undue influence.
We, ___________________ and _____________, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as his last will and that he signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence.
State of Alabama
County of ______________
Subscribed, sworn to and acknowledged before me by __________________, the testator, and subscribed and sworn to before me by _________________ and ___________________, witnesses, this ________ day of ___________________, 20____.
(Notary Public acknowledgment with SEAL)
State of Alabama
County of ______________
We, ______________, _________________, and ______________, the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as his last will and that he had signed willingly (or willingly directed another to sign for him), and that he executed it as his free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of his knowledge the testator was at that time 18 years of age or older, of sound mind and under no constraint or undue influence.
Subscribed, sworn to and acknowledged before me by ____________, the testator, and subscribed and sworn to before me by ________________, and ________________, witnesses, this _______ day of _____________, 20_____.
(Notary public acknowledgment with seal)
· You need to have a will.
· It’s not hard to do, you probably don't need a lawyer to do it, and it doesn’t have to cost a lot.
· Do it. Really.