The Regrets Of Not Creating A Will For Loved Ones

by on October 18, 2018

People have the tendency to spend a lot of their time pondering about money and if it will be available to them during retirement. How would you plan for your estate? Did you make enough plans? If not, then CunninghamLegal is here to help. But the truth is, 70% of adult Americans have neglected to create a will. Some will just assume that their assets are not important. However, this is far from the truth.

The law will assume, that as adults, we make rational decisions about our assets. But no matter what your age is, old or young, we all go through a stage where we make foolish decisions, or even become so old that we are no longer competent. This is why it’s important to create a will.

Just imagine that you and your spouse go through a terrible event, leaving all of your assets to a probate court judge and probate attorney because you failed to create a will naming your children beneficiaries. And sometimes, if they’re too young, a will can give you the opportunity to name an alternate guardian if you are no longer there with them. Learn more about it here on how you can properly allot your assets!

Before you can create a will, tally up all of your assets, including your investments, house, insurance coverage, and the value of your retirement plan.

Once you have tallied up all of your assets, then asset protection is something that should be your next step. Mentally ask questions about who you want to leave your estate to and who your beneficiaries will be, listed on both your insurance policy and 401k.

The Different Levels Of Legal Capacity

People Can Change

As a human being, you have the tendency to change day to day. Some people can wake up in the morning and have the most energetic and positive attitude, and then the next day experience depression, or depending on the type of illness that they have, their medication could cause them to make erratic decisions. By having a legal document in place you can avoid the unknown variables.

The Variation Of Standards

Mental capacity and legal capacity are two different things in the court of law. If an individual is able to make a contract, create a will, and give consent to medical treatment, then they would be more entitled to capacity in the eyes of the law. However, it depends on the action that is being taken if they deem a person competent.

Lowest Levels Of Capacity

The lowest level of capacity is called a testamentary capacity. That means that the person who is creating the will must understand the nature of his or her property and who would normally be considered heirs. For example, a person who has had a stroke or is diagnosed with Alzheimer’s may find it difficult to make coherent decisions. They may experience a speech impairment or their thought processes could be damaged.

A red flag would be if the individual that signed the will has no recollection of what happened the previous day. However, if the client was in their right mind the day of signing the will, it can still be accepted in the court of law.

Undue Influence

When an individual is forced to sign a will, this is considered undue influence. Undue influence is when a client has been coerced or forced to make a will by either peer-pressure or threats. The client may say things like “I really don’t want to do this, but I guess I have to.”

Another example of undue influence is telling a family member that in order for them to continue staying at your home, they will have to write you into their will.

What Is Considered Fraudulent?

If an individual has placed a will in front of the client that has been changed without their knowledge, this is considered fraudulent activity, because the client has no idea what they are signing.

The law considers a will that is created under fraudulent activity 100% invalid.

The creation of a will can be a little tedious, but once you have your will created, try to update it regularly. You can simply amend it based on changes in your family. For example, a new baby has been born or someone has passed away.

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