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Old 12-28-2016, 05:34 PM
mlb mlb started this thread
 
Location: North Monterey County
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We have already done our Advanced Directives..... but our money situation will be changing in the coming years and it's time to re-do/rework our wills and set up a family trust.

We've been through the mill with attorneys (for the inlaws) and we'd like to do this ourselves because of what we learned using those attorneys.

They charged anywhere from $1000-$2000 for original setup - and $400 for any changes. We think we can do better.

Thoughts?
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Old 12-28-2016, 06:12 PM
 
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think again .

do it professionally .

i have explained why many times on these forums .

my feeling is there is no such thing as a simple will in most states.

i firmly believe when it comes to this stuff with no do overs allowed do not use internet canned documents , see a specialist.

i have dealt with one defective will and 1 defective trust already in my lifetime.

much of what protects your wishes is not even in the documents. it is protocol and is the questions asked at the signing in front of witnesses.

state laws change on the fly . we had a co-worker hit a snag because the internet form used was not the new statutory form required as mentioned below.

we hit a snag on the refinance of a house we inherited through a simple will.

it read i leave my house and possessions to my child beth.

the title company stopped the refinance since a word was missing. that word was ONLY " as in only child.

well i had to pay all the attorneys for the day and lost my rate while we got affidavits there were no other children.

we had a court rule a trust defective as well as it lacked a sentence relating to predeceasing the parents.


as the judge told us , it is clear what the intentions were but he cannot re-write history or add missing words.



some of the issues those who use canned documents in our state ,ny run in to are :

Preparing and executing a valid health care proxy provides a good illustration. The health care proxy is a document that allows an individual (the “principal”) to appoint an agent to make health care decisions in case he/she becomes incapacitated. The main purpose of the health care proxy is to appoint an agent. There is a presumption that the agent knows the principal’s wishes. Nonetheless, according to New York State case law, if a principal’s wishes regarding the withholding of artificial nutrition and hydration are not articulated, an agent will not be able to make such decision. Based on this case law, it is imperative for the principal to set forth his/her wishes regarding the administering of artificial nutrition and hydration either in the actual health care proxy or in a separate living will. Failure to do this can result in unforeseen consequences – which is exactly what the principal was trying to avoid in the first place. Secondly, many individuals erroneously believe that they can appoint more than one agent at a time on a health care proxy. This would make the document faulty because only one agent at a time can make medical decisions. A person drafting a health care proxy can add language to avoid insulting other family members, but again- this requires the help of someone with experience. Finally, the document must be witnessed by two individuals in order for it to be validly recognized. A person should not have his agent, spouse or child be a witness to the signing.

We see even more problems in the area of powers of attorney. The main thrust of a power of attorney is to appoint an agent to act on an individual’s behalf with respect to financial matters in case such individual becomes incapacitated. Many people innocently refer to this document as one that is “simple” to prepare. This could not be further from the truth. Firstly, New York State passed legislation effective September 2009 in an attempt to create a statutory form that would be uniformly accepted. This legislation was the result of tremendous abuse that was found in this particular area, with some appointed agents taking advantage of the disabled and elderly.

The new power of attorney law results in a much lengthier document, and significantly restricts the actual power given to the agent over financial matters. If transfers are to be made on behalf of the principal, a separate gift rider must be executed. The gift rider must specifically articulate the agent’s power to make gifts to himself/herself or to third parties. Further, any additional powers beyond those enumerated in the statute, must be added to a modification section. Finally, while the law mandates banks, brokerage houses and other financial institutions to recognize the power of attorney, the form utilized must be statutory. Accordingly, if someone decides to cut corners and download a form from the internet, this may result in a tremendous disservice because if the form is not statutory, it does not have to be legally recognized. The power of attorney is an extremely important tool for estate and elder law practitioner. If the principal incorrectly drafts and/or executes this form, his/her ultimate plans regarding Medicaid eligibility or gifting to loved ones could be completely stymied. It is imperative to have this document prepared by an experienced practitioner.

A last will and testament is yet another document that must be prepared under the supervision of any experienced attorney. After the person who executed the will dies (the “decedent”), the will gets admitted to probate through surrogate’s court so that the decedent’s wishes can ultimately be fulfilled. Through the probate process, the will is reviewed and the court checks to make sure the will was drafted and executed properly. The number of witnesses, the affidavit they sign and the way the will is fastened are some examples of what the court reviews. Any mistakes, such as the removal of a staple or an ambiguous bequest can result in unnecessary delays, costly legal fees, and at worse, an inability to complete the probate process.
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Old 12-28-2016, 06:56 PM
mlb mlb started this thread
 
Location: North Monterey County
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Certainly something to think about. Thanks.
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Old 12-28-2016, 07:14 PM
 
3,107 posts, read 1,722,097 times
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Quote:
Originally Posted by mlb View Post
We have already done our Advanced Directives..... but our money situation will be changing in the coming years and it's time to re-do/rework our wills and set up a family trust.

We've been through the mill with attorneys (for the inlaws) and we'd like to do this ourselves because of what we learned using those attorneys.

They charged anywhere from $1000-$2000 for original setup - and $400 for any changes. We think we can do better.

Thoughts?
We did our own wills after talking to several lawyers. OTHER than one, who said we don't need any fancy trust just a simple will, they all wanted us to set up elaborate trusts. Depending on your situation and capability and TIME, you may or may not want to do it yourself. We did use the Willmaker.

We have no divorces in our family, no step families.
Our children are adults and professionals and responsible.
No real estate, other than our house, nor business.
All our assets are in funds.
We felt we knew how we want this set up.
We read everything about estate planning and the tax laws in our state.
We took our time and drew up our wills with Willmaker. We spent an entire day since we discussed every step. at the end of it we knew exactly what we did and why. In the process the software sets you up with all the paperwork you need.
The language is simple and makes you go through several questions.
We did not set up a trust. You can also do your own trust, by the way.
You do need a lawyer to get it notarized. A notary public will not do, in our state at least.
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Old 12-28-2016, 08:21 PM
 
6,804 posts, read 3,864,772 times
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Doing your own will can be safe under some circumstances. Some of these are:

You live in a state that does not require a lawyer to notarize a will.

You have assigned beneficiaries to your investment and bank accounts.

You leave at least something to all your children so none can claim you forgot them in error.


Many seniors have few assets and a simple will done by themselves will suffice. If there are complicated financial or family circumstances, consulting a lawyer is advisable.
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Old 12-28-2016, 08:32 PM
mlb mlb started this thread
 
Location: North Monterey County
3,179 posts, read 2,856,112 times
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No children so that saves us a lot of work....

We will be changing states in a few years so we will verse up on both.
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Old 12-28-2016, 09:25 PM
 
3,107 posts, read 1,722,097 times
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Quote:
Originally Posted by Harpaint View Post
Doing your own will can be safe under some circumstances. Some of these are:

You live in a state that does not require a lawyer to notarize a will.

You have assigned beneficiaries to your investment and bank accounts.

You leave at least something to all your children so none can claim you forgot them in error.


Many seniors have few assets and a simple will done by themselves will suffice. If there are complicated financial or family circumstances, consulting a lawyer is advisable.
i don't understand your first point. Why?
The other two are right.
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Old 12-29-2016, 12:03 AM
 
6,804 posts, read 3,864,772 times
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Originally Posted by cb2008 View Post
i don't understand your first point. Why?
The other two are right.
I think it would be difficult to find an attorney who would notarize a will for you unless you used him to draw up the will. Fortunately regular notaries can notarize wills in most states, maybe all now.
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Old 12-29-2016, 01:44 AM
 
71,551 posts, read 71,730,589 times
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not one attorney we tried would sign off on any will by checking it over that they did not create and have full power over the wording
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Old 12-29-2016, 06:04 AM
 
3,107 posts, read 1,722,097 times
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Quote:
Originally Posted by Harpaint View Post
I think it would be difficult to find an attorney who would notarize a will for you unless you used him to draw up the will. Fortunately regular notaries can notarize wills in most states, maybe all now.
Not in MA. The lawyer we used avowed responsibility for will and notarized it which only affirmed we are who we say we are
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