Legal A-Z

Legal FAQs

What exactly is the difference between a will and a living trust?
Do I still need a will if I have a living trust?
What papers, in addition to a will, do I require?
Is it necessary for me to leave things to my children?
Is it necessary for me to leave property to my spouse?
Why can’t I use WillMaker to create a springing power of attorney?
What exactly are those lengthy legal cautions at the start of my power of attorney?
Why am I unable to use WillMaker if I reside in Louisiana?
Can I create a community property agreement using WillMaker?
Can I create a conditional gift using WillMaker?
I have real estate in another nation. Can I leave that property to my children using my WillMaker?
Is a no-contest clause used by WillMaker?
Where can I get further information?

What exactly is the difference between a will and a living trust?

The primary distinction between a will and a living trust is that property passed via a will must go through probate, but property passed through a living trust does not. As a result, the majority of persons who create simple living trusts do so to save their family time and money (by keeping their property out of probate).

Aside from that, wills and living trusts serve many of the same purposes. They both give a reversible means to divide your property and administration for property left to young recipients. Here are a few more distinctions:

A will may be used to:

Designate guardians for your children, forgive your debts, appoint beneficiaries for “anything else” you possess, name an executor, and utilize witnesses to finish your paperwork.

A living trust may be used to:

evade probate
before death, give property management
Keep your property distribution discreet, and get your papers notarized.

Do I still need a will if I have a living trust?

Yes, most people who create a living trust, such as the one you create with WillMaker, should also create a backup will to handle a few things that you can’t do in your trust, such as naming guardians for minor children, naming an executor, and naming beneficiaries for any property that isn’t placed in your living trust. You may identify particular beneficiaries for your non-trust property in your backup will, or you can write a pour-over will by designating your trust as the beneficiary of your non-trust property.

Find out more about creating backup and pour-over wills.

What papers, in addition to a will, do I require?

Most individuals would benefit from creating a WillMaker’s Health Care Directive and Durable Power of Attorney in addition to a will. You choose trusted persons to make medical and financial choices on your behalf in these two agreements.

Aside from those three important papers, you may avoid probate by using a Living Trust or a Transfer on Death Deed.

Finally, think about composing a Letter to the Survivors. You may provide extensive explanations about your choices, general comments about your life, or a last farewell in this letter to your loved ones.

Is it necessary for me to leave things to my children?

You are not required by law to leave your children’s property. If you intend to leave nothing to a kid, make your intentions plain. Otherwise, the kid may be considered an ignored heir (referred to as “pretermitted” in legal language) and may be entitled to a piece of your assets. You may make your intentions obvious with WillMaker’s by identifying the kid in the Family area and then leaving nothing in the Property section. Later in the conversation, the computer will question whether you are certain you do not want to leave anything to that kid. If you respond yes, your paperwork will include a line stating that your refusal to leave property to that kid was purposeful.

Is it necessary for me to leave property to my spouse?

Maybe. If you want to leave very little or no property to your spouse or registered domestic partner, you may encounter certain legal difficulties. Every state has certain legal safeguards for spouses, but how they are implemented varies by state.

By ensuring that a surviving spouse receive a set amount of a dead spouse’s property, common law property states safeguard a surviving spouse or partner from being fully disinherited. Community Property states provide security before death by requiring couples to share income while married.

Why can’t I use WillMaker to create a springing power of attorney?

While it is permissible to create a financial power of attorney that “springs” into action when you become disabled, doing so is almost never a smart idea. In fact, establishing a springing power of attorney may pose more issues than it solves.

When the time comes to utilize the document under a springing power, your agent must get a “determination” of your incapacity. In other words, someone – typically a doctor – must declare that you no longer have the capacity to make your own choices. This approach causes delays, privacy concerns, and difficulty with defining your impairment before you become disabled.

With a few exceptions, you may avoid these issues by creating a durable power of attorney that takes effect as soon as you sign it, such as the one available via WillMaker.

You may prevent these issues by creating a durable power of attorney that takes effect the moment you sign it, such as the one WillMaker generates. Just make sure your agent knows when and how you want to utilize the paper. This level of confidence is a prerequisite for designating an agent. If you don’t trust your agent to carry out your power of attorney as you desire, you should choose someone else to manage your money.

If you still desire a springing power, consult with a lawyer. An expert attorney can design a power of attorney that is more specifically suited to your position and needs.

What exactly are those lengthy legal cautions at the start of my power of attorney?

Those portions may be unsightly, but they must (or should) be included in your durable power of attorney. This is why:

Durable powers of attorney are very strong instruments that provide one person the authority to handle the money of another. They may be highly beneficial, but evil individuals can also use them to steal, perpetrate fraud, or abuse the principal in other ways. As a result, most lasting powers of attorney include certain precautions to guarantee that:

1) The principle knows what it means to sign a power of attorney and the consequences if the agent (attorney-in-fact) is a terrible person, and

2) The agent recognizes that the agent’s obligations compel them to operate in the best interests of the principal.

In many jurisdictions, durable powers of attorney must include “warnings” or “notices” at the beginning or conclusion (or both) of the instrument. These passages of text are often required to have a specific size, capitalized, or bolded (or all three). California’s statute, for example, may be found here: Cal. Prob. Code s. 4128 appears in WillMaker’s California durable power of attorney as follows:

WillMaker sends a notification to the principal in every state, even if state law does not require it.

Nobody knows how effective these warnings are. But we do know that they are mandated in many jurisdictions and that they give an extra layer of protection against misuse in all states. We also know that organizations seeking to accept your power of attorney would recognize certain bits of language as recognizable indicators of legitimacy.

To summarize, WillMaker includes such bits of unattractive language in your document on purpose; do not try to eliminate them. Before signing a durable power of attorney, both you and your agent should read and understand the cautions.

Why am I unable to use WillMaker if I reside in Louisiana?

Unlike the laws of the other states, Louisiana law is based on Napoleonic code. This distinguishes Louisiana estate planning legislation from the rest of the nation, and WillMaker does not handle Louisiana’s special needs.

Some of the forms and information in WillMaker may be relevant to Louisiana citizens in general. However, when it comes to creating legally binding forms,

Can I create a community property agreement using WillMaker?

WillMaker can assist you in creating a community property agreement if:

You reside in the state of Washington.
You’re married, and you want your whole estate to go to your spouse.

Communal property agreements (CPAs) are often used by married couples to keep community property out of probate when one spouse dies. CPAs may also be used to convert separate property to community property, with the conversion taking effect when the agreement is signed or when one of the spouses dies.

WillMaker exclusively serves citizens of the state of Washington. WillMaker’s Washington CPA is straightforward and unyielding. When one spouse dies, all of the dead spouse’s property becomes community property and transfers to the surviving spouse without probate, according to the agreement. When a married individual in Washington prepares a will that leaves everything to their spouse, WillMaker produces this CPA automatically. In this case, the CPA (with with directions for completing it) is printed alongside the will. The spouses are not required to utilize it, but it is offered just in case.

Can I create a conditional gift using WillMaker?

No, you cannot write a bequest in WillMaker that will take effect only if a certain condition is met, such as “$5,000 to John if he quits smoking.”

Such conditional bequests are perplexing and normally need someone overseeing and supervising the recipients to ensure they meet the stipulations of the will. For instance, when and how might an executor determine that John had really quit smoking? You must be willing to give property to adults outright in order to utilize the WillMaker will; you cannot make recipients go through hoops or modify their behavior to receive it. (However, you may select an adult to handle property left to children or young adults.)

If you are serious about making a conditional bequest, consult with an experienced estate planning attorney.

I have real estate in another nation. Can I leave that property to my children using my WillMaker?

No, you should not use the WillMaker to transfer property in another nation. Instead, hire an attorney to assist you with your estate planning. The laws of the other nation may impact how property flows to beneficiaries, as well as the taxes levied on your inheritance.

Choose a lawyer who has dealt with foreign property before since they will need to comprehend or study the laws of the other country, as well as any international laws that may apply. If required, your attorney may collaborate with an attorney in that nation to verify that local laws are followed.

Is a no-contest clause used by WillMaker?

WillMaker does not use a no-contest provision. Many individuals assume that incorporating a no-contest provision in a will or trust may deter potential beneficiaries from contesting the will. Most jurisdictions, however, would not maintain a no-contest provision if the challenger has a solid basis to disagree to the will, such as demonstrating that the will is invalid because the signer’s name was forged. Other states go even farther, refusing to enforce no-contest agreements for any reason. In reality, no-contest provisions seldom function as intended by the dead. WillMaker does not include one in its will or trust to prevent creating a false feeling of security concerning potential will disputes.