Wills can prevent legal headaches

October 24, 2003|by KATE COLEMAN

Benjamin Franklin said it: "But in this world nothing can be said to be certain, except death and taxes."

If you take good care of yourself, you might have a better chance of living a long life. But there's so much that's beyond control. You can, however, control what happens to your property after you die. If you are the parent of young children, you also can control who will take care of them.

If you want that control, though, you have to have a will.

Scott Alan Morrison, an attorney practicing in Hagers-town and Frederick, Md., holds occasional free seminars about the importance of having a will. He's drawn about 50 to 60 people per session - most of them with children or grandchildren. Some of the attendees have been in their 30s; none have been in their 20s, he says.

Seventy-five percent of people will die without a will, Morrison says.

What is a will?

A will is a legal statement of a person's wishes concerning the disposal of his or her property after death.

Take the grandfather's clock that's been handed down to the oldest child in the family for generations. Without a will to provide for that disposition, the clock becomes part of the estate. It could end up in an antique dealer's shop after the estate auction, says William S. Dick, an attorney in practice in Waynesboro, Pa., and Greencastle, Pa.

If there are no relatives - children, grandchildren, parents, grandparents, then siblings and finally first cousins - the estate's assets go to the state, Dick says. States get millions of dollars this way.

A will can include provisions for the care of minor children.

Nobody wants to think about it, but it happens. Even if you don't have a will, the children will receive the funds you have. But who will control those funds? Who will care for the children? The grandparents would be named guardians, and sometimes it works out, Dick says. If there are no grandparents? The parent's brothers and sisters are next in line, but what if there are five or six of them - some living far away?

It's smarter to take care of things ahead of time. You need a will to make sure your plans are executed, says Dick.

You don't actually need a lawyer to write your will. Fill-in-the-blank forms can be downloaded from the Internet. Basic forms are available at office-supply stores, Morrison says.

But if you take the do-it-yourself route, he strongly suggests that you have the completed document reviewed by an attorney.

"You do need to be careful," Dick says, citing a couple of troublesome examples.

One man did his own will, named an executor, but never filled in the blanks showing how and to whom he wanted his property distributed.

In another case, which Dick says went to Pennsylvania Superior Court, a father willed his estate to be divided "between" his daughter and two sons.

The word "between" implies two. The division was in halves: Half to the daughter, the other half to the two sons. The sons disputed it, but the daughter won the greater share - by the letter of the law.

"You can be so easily tripped up," Dick says.

A will does not need to be notarized, but you need to sign it and it needs to be witnessed by two people.

Someone to trust

A personal representative - the term that is coming to replace "executor" or "executrix" as the title of the person who manages the administration of the estate - is named in the will. You can choose a person you trust. Without a will, you can't control who will handle the intimate details of your estate.

"Who's going to go through your sock drawer?" Dick asks.

Someone needs to know where to find the most up-to-date document.

A will should be kept in safe place. In Washington County, the Register of Wills will keep your document on file for a $5 fee. There are no similar provisions in Pennsylvania or West Virginia.

Dick suggests a lock box at the bank or a strong box at home. Many attorneys hold the documents for their clients. Dick, for example, has a vault at his office.

When a person dies, the property he or she owns goes through the probate process and is subject to the claims of creditors. Morrison compares it to a corporation going out of business: Assets are liquidated and bills paid. Then the remaining assets are distributed to the people named in the will.

Can you change your will?

The answer is yes, and Dick says the computer age has changed the process of changing your will. The attorney can keep a copy on a disc, and a client can direct a change with a phone call. The change can be made, the new will printed and the person can drop in and sign it.

Something Dick encourages is that people give items to the people they care about before they die.

"Enjoy the giving during your lifetime," he suggests.

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