Estate planning law, like most types of law, contains many details, specifics and requirements. This is especially true of probate law. If you are considering creating an estate plan, it is important to work with experienced legal counsel who can make sure your plan meets all the law's obligations. Additionally, certain types of plans, such as plans built around living trusts, may prove greater freedom in naming the people you want to carry out your wishes after you've passed.
If you work in the pharmaceutical and medical device industry, you are required to follow a specific set of industry-standard rules for carrying out your work. The law is somewhat like that, with its own set of detailed rules and standards that absolutely must be followed. The difference is, of course, that the law (and the need for compliance with its obligations) is far more likely to have an impact on more of us and our everyday lives than the rules of good practice for pharmaceutical and medical device manufacturing.
Probate law is definitely one area where that's true. Do you know how many witnesses the law in your state requires for a last will and testament to be valid and probatable? In most places, it is two, but did you know that in some states it is three? Do you know whether the law in your state allows someone who isn't a resident of your state to be an executor of a probate estate? In Florida, for example, most non-residents are NOT eligible to be executors; only the decedent's spouse and certain close relatives are allowed be executors without being Florida residents.
Here is another question: if you hand write your will, can it be submitted and probated after you die? If you live in Texas, and you compose a handwritten (technically known as "holographic") will entirely in your own handwriting - and you sign it - it's probably valid, even if you wrote it on the back of an envelope. In Florida, though, holographic wills are generally invalid.
So, what is the point of all of these questions about all of these legal rules? Well, there are two points, actually. One is a reminder of just how many rules and details are involved in creating a proper estate plan that clear all of the hurdles that the law establishes. To make sure that your plan dots all the legal I's and crosses all the legal T's, make sure that you are working with a knowledgeable and experienced lawyer who knows how to take your desires and goals for your legacy and put them into valid, enforceable legal documents.
The second, and at least as important, point is a reminder of just how intricate an estate built around a will (and probate) can be. There are lots of potential hurdles. One way to avoid some of these potential hurdles is through the use of a revocable living trust. As an example, several states (as noted above) create restrictions on who may serve as an executor of a probate estate. Some of those limitations are substantial. On the other hand, most all states have relatively few limits on who may serve as a successor trustee of a living trust. Depending on where you live, you may have much more freedom, with a living trust-based plan as opposed to a will-based plan, in naming the person you want to oversee the distribution of your assets after you're passing.