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The Honolulu Advertiser
Posted on: Sunday, July 12, 2009

Creating a will makes sense for everyone


By CHRISTINE DUGAS
USA Today

Hawaii news photo - The Honolulu Advertiser

Michael Jackson left behind a five-page will written in 2002 that appointed executors to handle his complicated estate.

ADVERTISER LIBRARY PHOTO | June 25, 2009

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Hawaii news photo - The Honolulu Advertiser

Jackson's family embraced at his memorial service last week at the Staples Center. His will also named a guardian for his three children.

MARK J. TERRILL | Associated Press

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When pop music legend Michael Jackson died at age 50, he left behind three young children, millions of dollars of debt and assets that may be worth more than $1 billion. He also left behind a five-page will written in 2002 that named a guardian for his children and executors to sort out his vast and complicated estate.

We all should take such care, but survey after survey has shown that the majority of us do not.

"The reason why people don't do wills is probably just some sense of immortality," says Sally Hurme, an attorney and senior project manager for AARP.

Wills and estate planning don't have to be complicated, and for the vast majority of us, they're not and can be done relatively cheaply and conveniently — even at home.

Who needs a will?

In general, everyone needs a will.

Living wills, powers of attorney and doctor authorizations should be established, too, but the focus here is narrower: end-of-life planning. Succession laws vary by state and circumstance, which is why having a will is a good idea. If you don't control what happens to your property, children, favorite piece of jewelry and so forth, the state will. And that can lead to imperfect and sometimes costly decisions in probate court, which is where the distribution of a person's estate occurs.

Parents of young children should have a will for one major reason: to establish a guardian. A trustee also should be named to manage money or any property left for young children. If parents change their minds over time about guardians, it's easy to change or destroy an original will and write a new one.

If you're an unmarried couple with or without children, a will is also quite important. Under most states' laws, if one partner dies without a will, it's as if the other partner doesn't exist. "Your partner would get nothing," says Mary Randolph, an attorney at Nolo Press, publisher of self-help legal guides and software. "It would go to your parents or possibly to your siblings."

Someone who has set up a joint bank account, joint homeownership and designated beneficiaries for benefits such as 401(k) plans and life insurance can be fairly well assured that a common-sense succession will occur even without a will. But there are costs to probate court and little tax protection.

And if you have personal items and mementos, such as jewelry, china or art, that you want to bequeath to a close friend, certain relatives or charity, that is only going to happen if specified in a will or trust.

If your estate is large or complicated, you may also want to set up a living trust. A living trust will help your heirs avoid probate, the complex and sometimes costly process by which a state court distributes your assets. Not everyone needs a trust: Many states exempt a certain amount of assets from probate or offer expedited procedures for small estates.

PREVENTING DISPUTES

Discord is not uncommon in families.

While there is not much you can do to prevent squabbles, you can reduce chances that disputes over your estate will end up in a bitter court battle.

For example, if you don't plan to provide your children equal assets, you may want to explain your reasoning in person.

"I've had some cases where we've had a family council," says Donna Bashaw, an elder-law attorney in Laguna Hills, Calif.

She says that one client wanted to leave more money to his daughter, who was divorced and struggling, than his son, who was a successful professional.

If there is a family member whom you want to disinherit, it still may be wise to leave him or her small assets. It may be less likely that he or she will dispute the will.

Some people establish challenge provisions. If someone challenges the will in court and loses, he or she forfeits whatever was left to them in the first place.

PLANNING MISTAKES

Some common errors to avoid:

Lack of signatures. A will must be properly signed and witnessed, with witnesses in the same room. If not, the will can be contested.

The will can't be found. A will needs to be stored in an accessible place. Some put them into a safe-deposit box. "The problem is that the executor may not be able to get to it after your death," Randolph says.

One suggestion is to keep it at home in a fireproof box with other important papers, Randolph says.

Multiple copies. You may want to provide your executor with a copy of your will. But if you change it, you should be sure to destroy any original copies.

Lack of specifics. Some people simply state they wish to leave their entire estate to their children. But all names should be listed so it is clear whether adopted or stepchildren should be included, for example.

Choosing the wrong executor. Relatives and friends are not necessarily the best trustees or executors. The right executor is someone who can be trusted, who can work well with others, who is intelligent and who is not afraid to ask for — or hire — help.

NEED A LAWYER?

An attorney specializing in estate planning can be helpful but is not always necessary. Several companies offer software and online programs for do-it-yourself wills. Among the programs are Nolo's Quicken WillMaker Plus 2009 and Kiplinger's WillPower.