Attorney Robin R. Gregory, PLLC
A South Dakota Professional Limited Liability Company
(808)800-6500
Last Will and Testament
How can you manage your estate after your death?
Although you cannot take a "hands-on" approach after you die, you can take a hand in preparing so your surviving loved-ones will know your wishes. You can make a detailed plan or a general outline of how you wish surviving minor children to be cared-for, how your worldly goods should be distributed, and who should be in charge of making sure your wishes are carried-out.
TRUSTS:
The creation of a Trust is another way to take after-death action, before you die. In a nut-
shell, you would turn over all or some of your property to a Trustee who would take care of the property as directed in the body of your Trust Document. The most common trust for these purposes is the Inter Vivos Revocable Trust. Inter vivos meaning while you are living and revocable meaning the Trust can be revoked or terminated at any time, following the process outlined in the body of the Trust Document. The Trustee is most often you or you and your spouse, with a successor Trustee named to take over administration of the Trust upon your demise.
SPECIAL NEEDS TRUSTS:
Federal law allows "special" trusts to be created to care for loved ones who are disabled or debilitated. Each trust is designed with the individual in mind, however, there is certain language and certain rules that must be followed to make sure your disabled loved-one does not loose his or her medical assistance. Generally, the assets in a Special Needs Trust cannot be directly accessed by the beneficiary (disabled person for whom the trust is created), therefore, the assets do not count against the beneficiary's state benefits.
If a person with special needs will receive a monetary settlement from a divorce or civil suit, a special needs trust may be set-up to receive the settlement money, so the state benefits of the special needs individual are not disturbed.
As the Testator, you decide who will receive the property in your possession when you die. The receiver
of property is the devisee; the property to be received it the devise. To make a valid Will you must be at
least 18 years of age, of sound mind, and you must make your Will voluntarily and intelligently, without
being coerced or unduly influenced by others. You must sign your Will in front of two Witnesses who
will also sign your Will, noting that they Witnessed your signature. A will is "self-authenticating" if all
this signing takes place in front of a Notary Public who also signs, certifies, and places his or her Notary
seal on the Will.
To make your Will you must be at least 18 years of age, of sound mind, and you must be making
your Will voluntarily and intelligently with no coercion or undue influence from other people.
You will need to know what property you own and the "natural objects of your bounty" meaning, who should
receive your devises. The natural objects of your bounty are usually your closest surviving family members
and if you are not leaving your property to them, you should state specifically that you are not. You also
need to name a Personal Representative (also called an Executor or Executrix in some jurisdictions.) In addition, you should name at least one successor Personal Representative in the case number one cannot
or, for some reason, will not, perform his or her duties as Personal Representative. A Guardian and a successor Guardian should be named to care for minor children and, possibly, a Conservator.