The people's voice of reason

What is National Make A Will Month?

Apparently the National Make A Will Month runs during August of each year. I have no idea who made it up and didn’t know it existed until I heard a Legal Zoom advertisement.

Certainly any month is a good month to have a new Last Will and Testament prepared or rewritten; don’t wait for August to roll around each year to think about it.

I have never looked at the Legal Zoom products but I have had internet Wills come my way and they usually are flawed because the maker didn’t understand the statutory requirements. Preparing a Will takes a lot of thought, it’s not just a matter of which assets of yours should go to someone. If you are well off and give your spouse all of your assets you could incur an estate tax penalty upon their death. If you give assets to a child that is on SSI and/ or Medicaid you can disqualify them while the money is spent down. If you give assets outright to a child that is a minor (under nineteen years of age) it must be in a Trust and if you give assets to an adult child that has money woes or is a spendthrift then you may watch from the hereafter while your hard earned money goes to a child’s creditors or as the wind blows.

I mentioned above that a minor in Alabama is under nineteen. To make a Last Will and Testament, the disabilities of minority are removed for eighteen year olds so that they can make a Will. So many people say they have “nothing” only to realize they do have “something” that will need to be transferred to others.

Do you have a house (even if with a mortgage), or a vehicle (even with a loan) or a bank account or boat or investments or collectibles or antiques, etc? Then you probably need a Last Will and Testament.

There are several items needed in a properly signed Last Will and Testament and if it does not meet the statutory requirements, the Last Will and Testament may be deemed unusable after a person dies and the estate probated as if there was never a Will. That would defeat the direction that the decedent was trying to take.

Just because you sign a Will once in your life does not mean that the Will can still accomplish your desires at your death. I reviewed the Will of a decedent whose Will was forty years old. Names had been changed but even worse the law had changed significantly during that time period. The witnesses to the Will were dead and the current self proving language in Wills was not a part of the law then.

Fortunately I was able to find either professional partners or friends of one witness and the decedent who could swear by Affidavit that the signatures on the documents were the signatures of the witness and the decedent. If that particular Will was not usable the assets of the decedent would have still gone to the two children but with a twist. The named Executor in the Will would have had to Petition the Probate Court for Letters of Administration and purchased a bond based on the assets of the estate, so that is a cost that otherwise is generally stated in the Will as not being required. Once the Letters of Administration are received by the Administrator/ Administratrix/ Personal Representative then an inventory of the decedents estate as well as debts will have to be filed with the Probate Court. That of course means that you have to index all items along with the fair market value of each and it is subject to being public record. What if the decedent was something of a hoarder? That could be a nightmare. A Last Will and Testament generally removes the requirement of an inventory. So far just a few pluses for preparing a Last Will and Testament. Based on the assets, the bond amount can easily exceed the cost of preparing a Last Will and Testament.

Finally if you have no Will your estate will end up following the Alabama Rules of Intestacy. Looking at just a couple of examples can help you to see why that Will is so important. Let’s say you die having a spouse and no children and at least one parent is alive. By the Rules of Intestacy, the spouse gets the first one hundred thousand dollars and half of everything else. Really? WOW! That can be tough on a much beloved spouse who finds themselves with not enough to live on or get them through the bad events. But how about if you die leaving a spouse and children, all of which belonged to you and your spouse? Now your spouse gets $50,000.00 and one half of everything else. The children get the other half. That’s even worse for the spouse isn’t it? Finally what if you die and leave a spouse and say the kids were only your natural children? Now your spouse only gets one half of everything and the kids the other half. How is that relationship between your spouse and the step kids? Really good I hope.

Don’t wait until August to make your Will, do it whenever it needs to be done or updated. If you have a Will you need to have it reviewed every time you have a big life event change or otherwise every five years or so. If you don’t have much in the way of income call Legal Aid, the Montgomery Area Council on Aging (or equivalent), maybe the Jones School of Law Elder Law clinic or the Alabama State Bar. If you have means to pay and don’t know a lawyer ask a trusted friend or family member or call the Alabama State Bar Lawyer Referral Service.

Finally, when you make the appointment consider the other documents that are a part of an estate plan to include a Durable or Springing Power of Attorney and an Advance Directive (Living Will).

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.

"No representation is made that the quality of legal services performed is greater than the quality of legal services performed by other lawyers."

Mailing address:

Ronald A. Holtsford, Esq.

Ronald A. Holtsford, LLC

7956 Vaughn Road, Box #124

Montgomery, AL 36116

(334) 220-3700


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