1. 13 Reasons to get a Will or rewrite your old one
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• 1. Change in your marital status or divorce
• 2. Birth of your child • 3. Change in value of your estate • 4. Death of a family member • 5. Changes in ownership of your property • 6. Your executor or trustee dies or moves away • 7. Your kids grow up • 8. You move away from the state • 9. You want to change designated gifts to certain individuals • 10. You have new potential donees, perhaps to charity • 11. You have a new job or have become self-employed • 12. Changes in tax law • 13. You want to change from a will to a trust |
2. Joint Tenancy, Life Insurance, 401K's, Pay-On-Death accounts
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• Your house, car, bank account and investments can be held in joint tenancy with right of survivorship. Under Montana law, joint tenancy assets pass to the surviving joint tenant at the moment of your death. Your will does not control this transfer, even if there is language in the will purporting to do so.
• Similarly, retirement plans (401(k) or IRA), pass to beneficiaries you have designated in the retirement plan paperwork. Again, your will does not control this transfer. Also, some stocks and bonds pass this way, as they are controlled by "pay on death" instructions that were part of the original investment agreement. • If these assets are improperly set up, or if you expect them to be controlled by your will, you should seek legal help. These items may constitute the bulk of your estate, and you should understand what will, or can, happen to them when you die. For information from our office on this subject, call us at (406) 728-4682. |
3. Who should you tell about your Will?
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• Your personal representative (executor) and other close friends or relatives should know where to find your will. The original can be maintained in your home, in a safe deposit box at your bank, or at our office. Montana clerks of court will keep original wills. The main thing is to let people know where the original can be found when it is needed.
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4. Guardian (and Trustee) for your Kids
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• Your will is the place where you designate one or more guardians and trustees to care for your young children. Naming guardians and trustees to hold your financial resources for them after you die, is a critical function a will performs for young parents. The person who has a will when he or she dies can expect the designation in a will of a guardian [and trustee] to be accepted by the probate court.
• This factor alone makes it worthwhile to have a will in place, one which implements your plans the way you want them. |
5. Will or Trust?
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A will is your written instruction on how to dispose of property you own at the time of your death. A living trust is like a family corporation; it "owns" your property and exists to carry out your written instructions on how to dispose of property that you transferred into the trust when you set it up. The trust's instructions as to who gets what are written the same way they would be in a will and serve the same purpose.
• 1. A living trust is more private than a will - after death, there is no exposure of information in probate court. • 2. A living trust is better if you own land in more than one state; with a will, you generally have to have ancillary probates in all the states where you own real estate. • 3. A will is cheaper up front than a living trust, because there are no up-front title transfers required to make the will work. When you set up a trust, you also have to deed into it the property that the trust will "own", and that makes it more expensive than a will. • 4. A will doesn't require a change in the way you file taxes or account for your assets; you remain the "legal" owner of your property instead of transferring it into a trust. If you have a living trust, you file income taxes on a different return and there are some minor complications in how the ownership of your trust property is shown on public documents. • For more information, call us at (406) 728-4682. |
6. Wills and Trusts: When a Person Dies Without a Will.
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• The share of a surviving spouse is the entire estate if there are no descendants or if the descendants are also descendants of the surviving spouse; or
• the surviving spouse gets $200,000.00 plus three-fourths of any excess if there are no children/grandchildren but there is a parent of decedent surviving; or • the surviving spouse gets $150,000.00 plus one-half of the any excess if the decedent left children/grandchildren with surviving spouse, but also left surviving children/grandchildren who are not descendants of the surviving spouse; or • the surviving spouse gets$100,000.00 plus one-half of any excess if the decedent left surviving children/grandchildren from a different marriage. • This is a complicated legal rule, and it gets more complicated under other Montana statutes. For further information, call our office at (406) 728-4682. |
7. Is a Handwritten Will valid?
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• In Montana, we allow"holographic" wills, which are valid if signed by either the person making the will or by someone who signs it in the presence of the testator at his or her direction, and is co-signed (witnessed) by two persons, each of whom signed within a reasonable time after witnessing the signing by the testator whose will it is. Even if all these requirements have not been met, a will can be valid as a holographic will, with or without witnesses, if the signature and material portions of the document are in the maker's handwriting.
• And even where a document is not valid as a holographic will, Montana law allows a document to be treated as if it would be executed as a valid will if there is clear and convincing evidence that the decedent intended that document to constitute his or his will. • No one wanting to leave a valid will should depend on these types of informal documents. They are a trap for the unwary. If you want a will executed in compliance with Montana law, even a simple one, call us at (406) 728-4682. |
8. What to do if someone is stealing from the Donor?
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• In many estates there are will contests. There are also situations of elder abuse, undue influence, and "lack of testamentary capacity" that can arise. The solution to issues of this kind necessarily require meeting with a lawyer; in the case of abuse, complaining to the county attorney; or in the case of undue influence or concerns about mental capacity, meeting with a private attorney with experience in handling disputes in estates.
• For information about any of these issues, contact us. Delay can only make things worse. Our telephone: (406) 728-4682. |
9. What Rights Does an Ex-spouse Have Under a Will Made Before a Divorce?
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• When a couple divorces, the provisions of wills that leave property to the divorcing spouses are invalidated. If you have a will that leaves property to your spouse then you are divorced from that spouse, the provisions of the will benefitting the ex-spouse are not enforceable in court.
• Divorce is always a time when the parties should consider their wills and rewrite the terms. A divorce is one of life's biggest disruptions, and a will should never be ignored after a divorce. Never depend on the statute the disinherits an ex-spouse to take care of the post-divorce planning that you should do. |
10. What About Disinheriting a Spouse or a Child?
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• In situations where a decedent has disinherited his spouse in his will, the survivor has significant rights under Montana law in a claim against the estate, particularly if the marriage is of long duration. A spouse that dies after only a short period of marriage can allocate nearly all of his estate to other persons without interference from the new spouse. After ten or more years, the numbers change, and the surviving spouse has significantly greater rights to a claim against the estate.
• Children and other persons do not have these rights, but they can always contest a will on grounds of undue influence or lack of testamentary capacity (see above). |
11. What are the Homestead, Family, and Exempt Property Allowances in Montana?
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• The homestead is a $20,000.00 allowance to a surviving spouse, or if there is no surviving spouse, to each minor child and each dependent child divided by the number of minor and dependent children of the decedent. The allowance is exempt from all estate claims.
• The exempt property allowance is an allowance in furniture, automobiles, appliances, and personal effects amounting to $10,000.00 for the surviving spouse. • The family allowance is a monetary allowance for a period of one year to pay maintenance of the surviving spouse and minor children. It can be paid as a lump sum or as installment payments. These allowances and exemptions are specific to spouses and children of decedents. • Allowances make it possible to provide funds for family even in estates that are insolvent. For further information about these important allowances, call our office at (406) 728-4682. |
12. What if a Will is Lost?
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• A will is valid if in existence and presented for probate. A will must be "executed" (signed by witnesses). A will that is simply a form without signatures is not a will, just a form.
• Montana law allows the filing for probate of a copy of a will if the original is lost, but the case is "formal" probate and receives close judicial supervision. If the filed will copy shows that attestation by witnesses was irregular, at least one attesting witness must provide testimony to the court to validate the wll. • If there is no will or will copy found, the decedent will be treated as having died without a will even if a will was known to have been signed by the decedent prior to death and then lost. • For further answers on this subject, contact us at (406) 728-4682. |