Introductions: Existing Will, what state?
Disclaimers
Our expectation
Three documents we should not be without
- Living Will (To pull or not to pull)
- Durable Power of Attorney for health care (Survives disability)
- LWT
History (Internet)
Jacobs (Genesis 48) to Joseph as his own sons
Shortest by a Hindi gentleman a couple of years ago (All to son)
Roman
The preservation of the clan
Cherokee eastern band is matriarchal and land passes through the women
Woman at 12 years
Men at 14 years
Published orally in square by crier with seven witnesses
Military (Fight to the death and not worry if family gets back pay and share of plunder)
English Development
Right to Inherit
Statute of Uses 1535 (chase those tails; fees could be exacted only upon passage of land to an heir;
land put in the name of a third party, a cestui que trust, for the benefit of the equitable owner created
an estate in land called a use. Landowners avoided fees. Henry pushed in the Statute of Uses.
Most land held in use. No fees. Recover monastery lands
Statute of Wills 1540 (Henry VIII and his Lords and the death of primogenature)
Types of wills
Holographic own handwriting
Nuncupative – orally
NM Statutory Will --Spouse one half or $150k after house and personality, 30-day survivability
Formal
Self-proving
Non self proving
Intestacy:
How disbursed in New Mexico – no kids then spouse all; if kids, the spouse gets one-fourth of intestate estate and one half of the community property;
Spouse must live- 120 hour survivability
Motivation
Bleak House
Horror Stories: Eddie to Frank to unknown grandchild in Florida
Queen of Mean or A couple of hundred million to the family dog
Problem of language - Why mention the legal legacy
Rail tracks 4Õ 8.5Ó wide; chariot widths approximately 1.4 meters, myth?
Xian Western Zhou Chariot Burial Pit, wheels 1.4 m
Two side-by-side horses are approximately five feet
The 13 colonies adopted all the laws of England that existed on July 4th, 1776 which included the language of the above statutes
WomenÕs right to property: 1847 New York; all states by 1900; S.B. Anthony and Elizabeth Cady Stanton and WomenÕs suffrage in 1919 with the 19th amendment, and suffrage for black males in 1869 with the 15th amendment
Terminology used in Wills
A bequest is a gift in the form of personal property.
A codicil is an amendment to a will.
A devise is special gift of real property in a will.
A devisee is a person who receives a devise.
A legacy is a gift. Historically, a legacy has referred to either a gift of real property or personal property.
A legatee is a person who receives a legacy.
A demonstrative legacy (sometimes referred to as a specific legacy or specific gift) is a gift of a specific item of tangible or intangible personal property, such as a bank account, shares of stock, a bond, etc.
Probate is the legal process of settling the estate of a deceased person.
To die testate means having created a will before death. A person who has not created a will prior to death is said to be intestate.
A testator is a person who executes a will; that is, the person whose will it is. The antiquated English term of testatrix was used to refer to a female but is generally no longer in standard legal usage.
An executor or personal representative [PR] is the person designated to administer the estate, generally subject to the supervision of the probate court, in accordance with the testator's wishes in the will. In most cases, the testator will nominate an executor/PR in the will unless that person is unable or unwilling to serve.
Things to Consider Before Writing A Will
50 to 60 percent of all people in the United States who own property die without leaving a will.
Some general things you should do or think about to prepare for writing or updating your will:
Make a list of the people to whom you want to leave your property (your beneficiaries). Have their names, addresses, and relationships written down. This list will help you sort out in your own mind what and whom you want to include in your will. List all children and grandchildren, even if, for some reason, you do not include them in our will.
Decide on alternate beneficiaries. This is important for married couples in case they die at the same time or in case your spouse dies before you do. Single people need to consider alternates also.
Give some thought to the person you will name as the personal representative (formerly called executor or administrator) of your estate. Also choose an alternate personal representative.
Decide on someone who can and will be the guardian for any minor children.
Make a written list with names and addresses of all the above (beneficiaries, alternates, personal representative, and guardians).
Estimate the value of your estate. Your lawyer or tax advisor needs to know this to determine whether tax planning will be necessary.
The federal government taxes estates at rates from 37% to 55%. But the only estates that are liable are those that exceed:
2008 -$2,000,000.00
2009- $3,500,000.00
2010- repealed
2011- $1,000,000.00.
(You can leave any amount of property to a spouse tax-free.)
Check the beneficiaries named on pass- through- personalty, the Transfer-on-Death vehicle (life insurance policies, annuities and individual retirement accounts.) Are any changes necessary?
Note if you own property in another state. Include its location and value.
Check to see if either spouse has separate property. In New Mexico, if a married person dies without a will, community property goes to the spouse. Separate property is divided one-fourth to a spouse and three-fourths to the deceased's children.
Assets and Debts
There are two kinds of property, real property and personal property. Real property (real estate) is land and fixed and permanent improvements on the land, such as buildings. Personal property is all other property, such as automobiles, checking accounts, stocks, furniture, jewelry, machinery or tools.
New Mexico is one of eight community property states. Community property is defined as any property acquired during marriage by either spouse, which is not separate property. When a person marries, income such as salaries and items purchased with the salaries become community property or "theirs," regardless of which spouse earns it or who earns the most.
Separate property is property acquired before marriage, by gift or inheritance to one spouse during marriage, by written contract between spouses or by court order.
Community property laws can be complex. When separate property is co-mingled, it may become impossible to distinguish in the event of a divorce or for estate purposes.
Debts, too, are defined as community debts or separate debts. Most debts acquired during marriage are community debts. Examples of separate debts are those acquired before marriage, those acquired after a divorce, those that a court declared separate, or debts acquired after marriage but designated to the creditor in writing as separate debts.
Check to see what property you currently hold in joint tenancy.
Consider distribution of your estate both in terms of dollars and percentages because its value will change. In most situations, you will designate your property in terms of percentages, but a few designations will be in dollars. For example, $1,000 to the XYZ charity, two-thirds to one's spouse, and the remainder divided equally among one's children or other designees. Your lawyer or financial advisor can advise you on any specific advantages to each method.
Decide if there are any specific bequests of special property or money such as, my diamonds to Jane, and my coin collection to Sam. Tangible personal property such as the silver candlesticks, paintings, and grandmother's rocker need not be specified in the will. It can be designated in a written list prepared separately from your will. (The law does not consider money, evidences of indebtedness, documents of titles and securities and property used in trade or business tangible personal property for this purpose.) Such a list must be referred to in your formal will.
If you move from one state to another, estate laws will be different than those you may have been familiar with previously. Check to be sure your will is still valid.
As you make the decisions about your will, keep in mind that a part of your will can be changed without changing the entire will by the addition of a codicil.
Finally, if you intend to seek assistance in writing your will, make a list of the questions you want to ask so you don't forget them.
Ten Steps to Completing Your Last Will and Testament
Destroy All Copies of Old Wills. If you have previously executed a Will, physically destroy it. Even though our Wills technically "revoke" all your prior wills, you should not rely on this language to revoke them.
Download Will Template. (http://www.ilrg.com/forms/st_estateplanning.html) go to appropriate form and drop down menu and select New Mexico
Provide at Least Nominal Gifts to All Your Children. Make certain that you leave at least something for your children (and your grandchildren, if any of your children are deceased), if you have any such descendants. If you leave nothing for them, a judge could determine at a later date that you forgot to do so, should one of them challenge your Will. It is best to make your intentions clear and demonstrate that you did not forget anyone. Even a gift of $1 to the child you "omit" will suffice. Please note that we do not recommend that you leave a nominal gift to your spouse using our Wills. In general, states require that the surviving spouse receive one-third to one-half of the deceased spouse's estate. If you wish to leave less than half of your estate to your spouse, consult with an attorney.
Choosing Appropriate Witnesses. All states require two witnesses, with the exception of Vermont. However, it is strongly recommended that you have three witnesses sign your Will in the event a witness dies or moves to another state. Your spouse or children should not serve as witnesses. In addition, your witnesses must be at least 18 years of age and should not be a beneficiary to your Will. (A court could later disqualify this beneficiary from his or her inheritance, and your Will is more vulnerable to challenge.)
Choose an Appropriate PR and Contingent PR. Ideally, these individuals should reside in the same state. It could potentially prove very costly for your PR to travel back-and-forth to manage your estate. In addition, some states require that out-of-state executors post a cash bond, even if you have waived this requirement in your Will.
Consider if a Notary and Self-Proving Affidavit are Best for You. Notarizing your Will is unnecessary, unless you choose to complete a Self-Proving Affidavit simultaneous with the signing of your Will. It is strongly recommended that you complete the Self-Proving Affidavit, unless you live in the District of Columbia, Maryland, Ohio, or Vermont, where they are not permitted. (In California, all wills are considered "self-proved" once they are properly signed and executed by the testator and all witnesses. In Louisiana, signing your Will in the presence of the witnesses before a notary public is required.) A Self-Proving Affidavit will make it unnecessary for your witnesses to appear in court to affirm your WillÕs validity after your death. The Affidavit can potentially save your beneficiaries and witnesses considerable inconvenience. It also gives your Will an extra layer of authentication that can help your beneficiaries avoid a long and costly probate process.
Sign a Single Copy of the Will Together with All Witnesses, Distribute Unsigned Copies, and Store Your Will. Witnesses must be in your immediate presence and must observe your actual signing of the Will, and all the witnesses must observe the other witnesses signing the Will. You do not need to read your Will to them, and it is unnecessary for them to read it. However, they must clearly understand that the document is your Last Will and Testament. You must clearly explain to them that you intend the document to function as your Will upon your death. If your state permits a Self-Proving Affidavit, and if you elect to attach one to your Will (recommended), remember that the same witnesses who observed your signing the Will should also observe your signing the Self-Proving Affidavit. Have the notary present at the signing of your Will, and then sign the Will and the Self-Proving Affidavit at the same ceremony. Remember, only prepare and complete one original Will. You should not have more than one original or even photocopies of your signed Will. Doing so can complicate matters if you wish to create a new will at a later time, as it may prove difficult to track down all copies of your old Will. Instead, consider providing your beneficiaries, executor, and alternate executor each with an unsigned copy of you Will. Store your Will in a safe place, and let your executor and alternate executor know where they can find and access your original Will upon your death.
http://www.ilrg.com/forms/lastwill-married-nc/us/nm
Parts of a Will
Publication
Revocation
Give the name of the spouse and any child(ren)
Authorize payment of funeral and burial expenses
Authorize payments of debts and expenses
Burial expenses
Dispose of specific property, primary residence and residuary property, devises of land to named beneficiaries and contingent benes
Sentimental gifts in letter to be incorporated by reference
Creation of a trust for any minor children if spouse dies before Testator
Appointment of Trustee and TrusteeÕs specific duties/responsibilities
Appointment of a Guardian and an alternate for any minor children in the event the spouse predeceases the Testator
Appointment of Personal Representative and contingent PR
Designate the powers of Executor and Trustees
Attestation
Closure Types (date and sign) or Self Proving, Power of Attorney, three witnesses
Codicil
Gifts $13,000.00 each spouse to any one person per year
Trust
Settler
Beneficiary
Trustee
Property
Limitations and Uses
Termination of Trust
A Word on Pet Trusts
Codicils
Letter of Instruction
A complete list of all assets, both liquid and illiquid (not easily transferred to money)
The whereabouts of any and all tangible assets that are not readily accessible
The names, passwords, PIN numbers and account numbers of all liquid assets, including bank, brokerage, retirement and investment accounts
The names and contact information of any bankers, brokers, attorneys or other professionals who handle your assets
Informal information regarding the dispersion of assets, such as who would get a sentimental possession or heirloom (the will may state that these articles are to be distributed according to the letter, which is incorporated by reference in the will.
Preferred charities for donations, if they are expected instead of flowers
Location of most recent copies of all financial and Social Security statements, tax returns, and legal documents (such as wills and trusts)
List of all financial account beneficiaries and their contact information, if necessary
The location of all titles and/or deeds for real estate property, rental property, oil and gas leases, etc.
Your Social Security number and birth certificate
Location (and keys to) all safe deposit boxes
Any divorce and/or citizenship papers, or applications thereof
Contact information of any debtors, such as mortgages, credit cards and car loans
Contact information for any and all insurance coverage, especially life insurance.
Care and placement of any pets
Contact information for all retirement account or estate beneficiaries
Estate Taxes
Gift Tax exclusion $13,000.00
Estate Tax exclusion
2008 -$2,000,000.00
2009- $3,500,000.00
2010- repealed
2011- $1,000,000.00
