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Wills

What do I need a will for?

Young or old, single or married, with or without children, everyone should have a will. A will names your heirs and determines how your assets are distributed after you die. A will can also name guardians for your minor children.

A will must comply with state laws to be valid. When drawing up a will, make sure the document is written, witnessed and signed according to the law. You must also name an "executor" of your will-someone who will settle your estate according to your wishes.

If you die without leaving a will, your assets will be distributed to your closest relatives as determined by the courts and not necessarily as you would have liked.

What is probate?

Whether you have a will or not, your assets pass through probate after your death (unless you have structured your estate with trusts to bypass probate). Probate is a legal process through which the courts settle your estate. The executor named in your will is the one who initiates the probate process by presenting your will to the courts. If you do not have a will, the courts will appoint an administrator of your estate. Your relatives and creditors are officially notified of probate by the courts.

The type of property that must pass through probate includes property you owned in your name alone and your spouse's share of marital property if your spouse is deceased.

If you do not have a will, the courts decide how to distribute your property to your heirs. If you do have a will, the courts will determine if your will is valid, inventory your property, determine the value of your estate through appraisals and pay outstanding debts and taxes you owed at the time of your death. Some of your estate might have to be sold to generate cash to pay the bills, and it is the executor's job to decide whether or not to sell real estate, investments and the like in order to satisfy your debts.

Until all your bills are paid, the courts may freeze your estate's assets. However, the courts will usually allow your heirs to take some short-term funds out of the estate for general support during the probate process.

Finally, the courts give your heirs whatever is left as directed in your will.

Probate can take anywhere from a few days to several months to complete. Probate is also going to cost your family. They may need to hire an attorney, pay for appraisals of your things and cover court costs for filing papers. The fees typically come out of the estate, which means your heirs receive that much less in the end.

Some types of property do not go through probate but rather, go directly to your heirs. They include jointly owned assets, property held in trust, 401(k) plans, pensions, life insurance and annuities.

If there are ways for you to avoid probate, it may be in the best interest of your heirs to pursue them.

How can trusts help me avoid probate?

Trusts are a way to avoid probate-and possibly reduce estate taxes. A trust is a legal structure between one person, called a trustee, and another person, called a beneficiary. A trustee holds property in trust for a beneficiary-that is, a trustee has legal title over the property and maintains full control but manages it for the beneficiary.

While some trusts are created at the time of death as directed by a will, a "living trust" is a trust you set up while you are alive. You can be the trustee of your living trust.

A living trust allows you to decide how your property will be managed during your lifetime and how it will be distributed upon your death, while maintaining your control over the assets during your lifetime and avoiding probate after your death. When you create a living trust, you must fund it by transferring your property from your name to the trust.

Another advantage of trusts is the privacy they afford both you and your heirs. A will becomes public record during the probate process-so all your assets and debts become public. The terms of a living trust, on the other hand, remain private.

Trusts do not make good sense for everyone. Setting up and managing a trust can require time and money. Often, an estate must be large enough to justify creating a trust. Also, a simple living trust does not reduce estate taxes for those with sizable estates. In order to address estate tax issues, you may have to create a more complicated trust structure.

How will my estate be taxed after I die?

It depends. For starters, all property left to your spouse is exempt from estate taxes, as long as your spouse is a U.S. citizen. Second, property that you bequeath to a tax-exempt charity is also exempt from estate taxes. If, excluding those factors, you have an estate that is worth more than a certain amount, depending on the year of your death, then estate taxes apply. Currently, the estate tax affects only estates of more than $1.5 million. Those estates are taxed a maximum rate of 48 percent.

In 2001, Congress passed a law that will repeal federal estates taxes in 2010. In the meantime, the top tax rates will gradually fall and the estate tax exemption will gradually rise. However, the law "sunsets" in 2011, which means that unless Congress votes to extend the repeal, estate taxes will revert to what they were.

There is no way of telling what might happen, so you should continue to do estate tax planning until a complete repeal actually occurs.

What type of trusts will help me reduce estate taxes?