Please state the scope of representation that you will be providing with the skills learned from this training.

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2 Please state the scope of representation that you will be providing with the skills learned from this training. A) Full Scope Representation B) Limited Scope Representation Submit Clear

3 Will Components, Probate Assets, Formalities, Modification, and Post- Execution Counseling Assisting Individuals to Execute Statutory Wills Training Module 2 Nicholas Levenhagen Esq., Bet Tzedek Legal Services

4 Learning Objectives 1. Identify and describe the four key components of statutory wills. 2. Differentiate between probate and nonprobate assets 3. Identify the formalities necessary for executing a valid will. 4. Determine whether executing a statutory will is appropriate for your Client due to either a prior testamentary act or an event necessitating modification. 5. Describe the three key post-execution instructions.

5 Agenda 1. Components of the Statutory Will 2. Probate versus Non-Probate Assets 3. Will Formalities 4. Modification 5. Instructing the Client on Post- Execution Steps

6 1. Components of the Statutory Will a. Beneficiary b. Executor c. Guardian for Minor Children d. Custodian

7 a. Beneficiary Definition an individual or entity that will receive the Client's assets as the Client has specified in his or her Will. Who can be a Beneficiary? Family Members; Friends; Spouse/Domestic Partner; or Charitable Organization.

8 b. Executor Definition - A person or institution named in the Will and appointed by the probate court who: Collects and manages assets. Pays debts, expenses, and any taxes that might be due. Distributes assets to the beneficiaries in accordance with the provisions of the Will, in a manner approved by the court.

9 Executor Bond The Client may require an executor to post a bond. What is a Bond? - A bond is a form of insurance to replace assets that may be mismanaged or stolen by the executor. The cost of the bond is paid from the estate's assets. If the Client does not want the executor to post a bond, the Client can note this in the Will.

10 c. Guardian for Minor Definition a nominee that the Client designates who will have the responsibility to care for his or her child if the Client and his or her spouse die before the child reaches 18 years of age. NOTE: The nominee must be approved by the court, but the court usually gives deference to the nomination of the Client.

11 d. Custodian Definition a person or trust company named by the Client who will manage assets given to a beneficiary under the age of 25 until the beneficiary reaches a certain age, which is determined by the Client. Note: The Client is not obligated to appoint a Custodian for beneficiaries under the age of 25. What if the beneficiary is under 18? (rule) If the beneficiary is under the age of 18 and no custodian is appointed, then the beneficiary's assets will be distributed to the parent or Guardian of such person until age 18.

12 This individual or entity receives the Client's assets as the Client has specified in his or her Will. What is the name for this individual or entity? A) Beneficiary B) Executor C) Guardian for Minor D) Custodian Submit Clear

13 This individual or institution named in the will and appointed by the probate court to manage and distribute the decedent s assets pursuant to the will. What is the name for this individual or institution? A) Beneficiary B) Executor C) Guardian for Minor D) Custodian Submit Clear

14 2. Probate vs Non-Probate Assets a. What does a Will Cover b. Non-Probate Assets c. Community Property

15 Does a Will Cover Everything a Person Owns? NO! Rule Wills only cover certain assets that a person owns in his or her name alone at death ( probate assets ). Wills do not effect non-probate assets.

16 Non-Probate Assets Life insurance Retirement plans, such as a 401(k) or an IRA Assets owned as joint tenants Transfer on death or pay on death Community property with right of survivorship Living trusts Spouse s or registered domestic partner s half of community property

17 Community Property Rule - A Will can only give away one-half of community property. A Will cannot give away a spouse's one-half of community property. Community property: is an asset or income that a couple has acquired or earned during their marriage or registered domestic partnership. Separate Property: includes inheritances, specific gifts to one of the spouses or registered domestic partners, and property and profits clearly traceable to property owned before marriage.

18 Which of the following are probate assets? A) Life insurance B) Valuable Jewelry C) House owned in joint tenancy D) 401(k) Submit Clear

19 3. Will Formalities a. Testamentary Capacity b. Witnesses

20 What is required to complete a Statutory Will? Testamentary Capacity + Witnesses

21 a. Testamentary Capacity At the time of execution, Client must understand: 1. What property he or she owns; 2. What he or she intends to do with the property through this will; and 3. Who his or her natural heirs are (such as spouse, children, etc.).

22 b. Witnesses Execution must follow these steps: 1. The Client must sign and date the Statutory Will in the presence of 2 witnesses; and 2. The 2 witnesses must also sign and date the document in the presence of the Client for the Will to be valid.

23 Clark asked Robert and Jamal to be the witnesses of his Statutory Will. Clark signed and dated his Statutory Will on Thursday in the presence of Robert but Jamal was unable to sign it because of traffic. Robert said he could take it to Jamal because Jamal s apartment was on his way home. Clark said ok and let Robert take his Will to Jamal. Jamal signed it that very night and called Clark to say that he signed it. Has the Statutory Will been validly executed? A) Yes, because Clark intended Jamal to be a witness. B) Yes, because Clark s Will was signed by two witnesses. C) No, because Clark was not present when Jamal signed the Will. D) A & B Submit Clear

24 4. Modification Issues Related to Post-Execution Modification of a Will

25 Issue: Preexisting Will or Living Trust Rule By executing a Statutory Will, the Client revokes all prior Wills and codicils. Rule If the Client already has a Will, the Client should only complete a Statutory Will if the Client intends to invalidate the prior Will. Rule If the Client has a Living Trust, then a Statutory Will should not be drafted, as it will mess up the Client s prior estate planning. The Client should be referred to the Bar Referral Service to discuss his or her needs

26 Changing a Statutory Will After Execution Question Can the Client make changes to a Statutory Will once it has been completed? Answer Yes, the Client may change the Will at any time but only by an amendment ( codicil ) and, preferably, after consulting an attorney. Alternatively, the Client may make and sign a new Will, revoking the old Will. What Should the Client NOT Do? The Client should NOT cross out words or sentences, or make any notes or written corrections. The Will may be considered invalid or the court may ignore parts contrary to the Client s true wishes.

27 Events Necessitating Modification A person should seek the advice of a lawyer and make a new will under the following circumstances: 1. Marriage or divorce; 2. Establishing or terminating a domestic partnership; 3. There are any major changes in the family (such as births and deaths); 4. The value of assets significantly increases or decreases; or 5. A person wants to change the guardian or executor previously nominated.

28 Carey has a son, Walter, and a grandson, Walter Jr.. Carey wants Walter Jr. to have her cabin after her death. Soon after Carey validly executed her Statutory Will she realized that she wrote Walter instead of Walter Jr. She fears that the probate court, unaware of her true intentions, will give the cabin to Walter. Which of the following are an appropriate solution to her problem? Choose the best answer: A) Do nothing because nothing can be done. B) Make a new will, revoking the old Will. C) Cross out Walter and write in Walter Jr. Submit Clear

29 5. Post-Execution Instructions

30 Post-Execution Instructions 1. Will in Safe Place The Client should place the Will in a safe place. 2. Notify Trusted Family/Friends of Safe Place The Client should notify trusted family members and friends where the Client is keeping the Will. 3. Make Copies of Will The Client should make copies of the original. 1. One Copy will remain with the assisting attorney or legal service organization. 2. The Client retains the other copies along with the original.

31 Complete the sentence below by filling in the blanks. The Client should place the will in a place. Submit Clear

32 Complete the sentence below by filling in the blanks. The Client should notify and friends where the Client is keeping the Will. family members Submit Clear

33 Complete the sentence below by filling in the blanks. The Client should make of the original. Submit Clear

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