回複:你不會看舊帖... 真的很"ㄌㄢˇ"OK,這是老貓的ANSWER

來源: 單身老貓 2008-08-05 18:36:40 [] [博客] [舊帖] [給我悄悄話] 本文已被閱讀: 次 (16490 bytes)
(1) 如果父母沒有遺囑,萬一有什麽不測,財產分配給孩子會很麻煩嗎?是的,最有名的一個案例是貓王過世後由於沒有遺囑他大部份的財產都繳了遺產稅!
(2)有遺囑就會很簡單嗎?
不見得?!主要是如果子女未成年的話,誰來擔任執行人??
(你必須考慮到這點)
(3)需要找律師嗎?
不見得?!?你可以在網上找到DIY的kits,照著所提供的範本自行製作一份,找公證人,(Your bank usually can do it)簽字後妥善保存即可,然而還是老問題一旦你身故之後,誰來幫你執行?????
(4)找律師,可以簡少許多事後的麻煩,(財產的分割等)
一般除非你須要經常須要修改你的遺囑,律師事務所通常隻收你一次的費用
(5)除了律師事務所外,哪裏可以辦遺囑公正?
可到你所在county地court house(郡法院),一般遺囑公證收費都不高。
(6)婚前訂立的遺囑處理嗎?
基本上您的問題的答覆要分三個部份回答
(a)遺囑的有效性是有延續性的,所以如果對方婚後沒有修改這份遺囑締內容,則這份遺的內容所提及有關財產分配的範圍與介定是包括婚後他個人財產的部份。

(b)有關婚姻中共同財產的分配,大部份的州(未施行community property的州)都有法律保護未亡人的權益,所以夫妻任何一方過逝後,在法律上未亡人通常都有權接管任何夫妻共同財產之下現在仍在居住的不動產的產權,(也就是說如果您現在住的房子雖然在房契中沒有您的名字,但是如果屬於夫妻共同財產的範圍 (ie. 如果是在您婚後所購買或是您曾經提出您個人的財產來協助購置這個房產),您的配偶死亡後,依法您有優先權來繼承這個房產的產權,任何其他的不動產則按遺囑中的規定分配。
至於動產的部份,一般的情況您有優先權可以分配到1/3到50%
(各州的州法不同)其他的按遺囑處理。

在施行community property的州 (美國有13個州,如加州採用這個係統),夫妻共有財產您自動擁有50%的處分權,也就是說他最多能遺留或是贈與給他前妻的隻有最高到50% of 您們的夫妻共有財產。

(3)如果您的配偶過逝之後,如果您本人對於遺囑中有關個人財產的分配的處理方式有任何不滿,依法您可以提出法律訴訟來挑戰這個遺囑的公平性或是適用範圍,一般的情況如果法院最終認定這個遺囑確實有不合法之處,法院可以用法院命令推翻這項遺囑,並且可以用法院命令要求家屬自行協商或是以行政命令重新分配遺產

ps: 您問的這幾個問題,其實最重要的關鍵是您的先生 (或是您的前夫) [老實說老貓要是發現枕邊人是這種負心漢,早就一刀把他喀嚓掉了],基本上他老兄可能需要修訂一下這份遺的內容。
(7)
在美國立遺囑有什麽規矩嗎?

有,請上網查一下便知 !
(開玩笑的,老貓下麵有URL給您)

如遺囑和其他文件衝突以哪個為準?

莫宰羊 !

要看是那一種文件,如果總統給予您一紙命令,當然以總統的命令為主 :)


我和LG的共同財產他有權立遺囑分給別人嗎?

可以,事實上他可以把大部份財產留給一隻貓也沒有問題,不過大部份的州對於配偶都有優先繼承權的規定,(或是不能將配偶剔除繼承的名單中) 但是如果婚姻關係不再存在,他有權對於財產做處分將您去除

或他可以把他那一部分分給別人嗎?

他可以規定屬於他的部份或是50%的共同財產給任何人 (看您所在州的州法對於夫妻共同財產繼承優先權的規定)


url

http://www.legalzoom.com/law_library/wills/marriage.html

&

http://en.wikipedia.org/wiki/Will_(law)

(8)
以前我們討論過這個問題,基本上看您在那一個國家,您可以找律師代表處理 (如果您有許多不動產或是您的情況比較復雜)
或是您可以買現成的軟件來處理,當然網路上有許多很好的資訊,您可以考慮。

以下有一個很好的資料您可以參考
Requirements for the creation of a will
Any person over the age of 18 can draft his own will without the aid of an attorney. Additional requirements may vary, depending on the jurisdiction, but every will must contain the following:

The testator must clearly identify himself as the maker of the will, and that a will is being made; this is commonly called "publication" of the will, and is typically satisfied by the words "last will and testament" on the face of the document.
The testator must declare that he revokes all previously-made wills and codicils. Otherwise, a subsequently-made will revokes earlier wills and codicils only to the extent that they are inconsistent. However, if a subsequent will is completely inconsistent with an earlier one, that earlier will be considered completely revoked by implication.
The testator must demonstrate that he has the capacity to dispose of his property, and does so freely and willingly.
The testator must sign and date the will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries). In some jurisdictions, for example Kentucky,[1] the spouse of a beneficiary is also considered an interested witness.
The testator's signature must be placed at the end of the will. If this is not observed, any text following the signature will be ignored, or the entire will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator's intentions.
After the testator has died, a probate proceeding may be initiated in court to determine the validity of the will, i.e., whether it satisfied the legal requirements, and to appoint an executor. If the will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a will were never drafted.

Although there is no legal requirement that a will be drawn up by a lawyer, there are many pitfalls into which home-made wills may fall, and it is highly desirable that any will is the subject of legal advice before drafting or execution. The person who makes a will is not available to explain him or herself, or to correct any technical deficiency or error in expression, when it comes into effect on that person's death, and so there is no room for mistake.

A very common error (for example) in the execution of home-made wills in England is to use a beneficiary (typically a spouse or other close family members) as a witness, although this has the effect in law of disinheriting the witness regardless of the provisions of the will.

Some states recognize a holographic will, made out entirely in the testator's own hand. A minority of states even recognize the validity of nuncupative wills. In England, the formalities of wills are relaxed for soldiers who express their wishes on active service.

A will may not include a requirement that an heir commit an illegal, immoral, or other act against public policy as a condition of receipt. In community property jurisdictions, a will cannot be used to disinherit a surviving spouse, who is entitled to at least a portion of the testator's estate. In England, a will may disinherit a spouse, but close relations excluded from a will (including but not limited to spouses) may apply to the court for provision to be made for them in the court's discretion.

It is not only a good idea but also essential that the testator give his executor the power to pay debts, taxes, and administration expenses (probate, etc.). Warren Burger's will did not contain this, which wound up costing his estate thousands. This is not a consideration in English law, which provides that all such expenses will fall on the estate in any case.

(9)家庭收入主要來源於丈夫立遺囑時應該夫婦共同立還是單獨立?
是不是夫婦共同生活許多年,財產一半就自動屬於妻子?如果丈夫先去世,財產就都歸妻子(如果沒有遺囑)?

不一定,要看當地相關的法令.
在美國,大部份的州是有所保障,但是並不是說妻子一定會得到一半的財產,因為繼承權也包括了債務....

如果丈夫不想身後財產全部歸妻子,現在要單獨立遺囑(不與妻子共同立遺囑),是否不合法?
如果您是在美國,您可以這麼做.然而您的配偶或許可以在您身故之後提出法律訴訟來挑戰這個遺屬的合法性. 其中一個關鍵是您在立這份遺囑時心態是否正常.神智是否清楚.
所以如果您因為任何理由一定要這麼做,您應該諮詢法律專業人士,務必確實保證對方將來不能在"骨頭中祧雞蛋":-)

最後來段長篇大論,打死你 :-)
老貓這兩天較忙,所以沒有時間寫一篇文章來回答您的問題
不過上網找到一些資料,希望對您有用(下麵締東西非老貓原創,敬向原作者至謝)
The procedure for creating a valid will requires attention to detail but is not difficult. The first most basic requirement of a valid will is that it must be in writing. The next requirement is that the testator (the person creating the will) must sign it with the intent of creating a valid will. Ideally, the signature must be the same legal signature that you would use on any other legal documents with your full legal name. If you are unable to sign your will we suggest you consult with a local attorney about properly executing your will. A final requirement is that there be witnesses to the signing of the will.

It is NOT a requirement that a will be notarized. It is also not a requirement that the executed (signed) will be filed with a court or any other body. Finally, it is not a requirement that a properly signed self-proving affidavit accompany a will in order for the will to be validly executed.

Witnesses:
All states require that there be two witnesses to the signing of a will, except Vermont, which requires three witnesses to validate a will. The witnesses may be called upon to testify after your death to “prove” your will. To be competent as witnesses, they must be over the age of 18 and must have the mental capacity to know that they are acting as witnesses to the will and would be competent to testify regarding the signing of the will. In addition, the witnesses should be totally “disinterested” in the will. Examples of people who should not serve as witnesses are beneficiaries of the will and persons appointed as fiduciaries in the will. Witnesses should be carefully selected for their independence and credibility.

Self-Proving Affidavit:
A self-proving affidavit appropriate for use in your state will be included with your will if you live in a state that accepts one. A self-proved will may be admitted to probate without the testimony of the subscribing witnesses, in other words the witnesses will not be called upon later to prove the will if a self-proving affidavit has been properly prepared and signed. This affidavit is included for completeness and though they are commonly signed, it is not required that the affidavit be signed in order for your will to be validly executed. A notary must acknowledge all of the signatures on the affidavit, spaces for the notary’s signature are provided at the bottom. The affidavit may be completed at the time of the execution of the will or at a later time, and should be kept in a safe place with the will.

Will Execution Ceremony:
Conducting a will execution ceremony is not difficult and does not require an attorney. Prepare by printing the entire will. Gather your witnesses along with the unsigned will for your will execution ceremony. State in a voice that is clearly audible to all of the witnesses that you declare this (the unsigned document) to be your will and that you are asking the two persons present (three in Vermont) to act as witnesses to the will and to your signature. After declaring the document to be your will, and asking the persons present to act as witnesses, initial each page of the will in the space provided at the lower right hand corner of each page then sign the will in the space provided in full view of the witnesses. Be sure that the will is also dated and that the place of execution has been entered. The witnesses should then sign the will in the spaces provided immediately below the testator’s signature. Sign only one copy of the will. A notary is not required to acknowledge the signing of the will.

If a self-proving affidavit is also being signed at this time, a notary must also be present for the signing to acknowledge all of the signatures on the affidavit.

After the Ceremony:
After the will is executed, it should be placed in a safe place known to others. You may make photocopies of the will and make these copies available to select people, such as the individuals or organizations named as fiduciaries. Because of the likelihood that you will make changes to your will in the future, you should be wary of providing copies of it to all of the beneficiaries. You should review your will periodically, especially when your family or economic circumstances change substantially.

Your Will
Provide for family, friends and charities. Name a personal guardian to care for young children. Specify the executor (or "personal representative") of your estate. Select a trusted person to manage property left to young people. Revise and update your will whenever you like.
Your Living Trust
Make a basic trust, whether you're married or single. If married, you can use an AB (bypass) trust and spare your heirs from potentially heavy estate taxes. Create subtrusts for minor children and young adults. Name custodians for property left to children. Change or revoke your trust at any time.
Your Financial Power of Attorney
Name someone to make your financial decisions, in case you are medically incapacitated -- and appoint an alternate in case that person cannot serve. Don't worry, you can grant as much authority as you wish.
Your Health Care Directive (Living Will)
Outline medical procedures that you want provided or withheld, if you can't speak for yourself. Specify whether or not you want your life prolonged through artificial means. Appoint someone to make sure your wishes are carried out.
Your Final Arrangements
Plan a funeral or other ceremony. Clarify whether you want a cremation or burial. Select someone to oversee your final arrangements -- and more!
Documents for Your Executor
Make sure your executor ("personal representative" in some states) has all the forms and instructions she needs to carry out her duties: Checklists, letters, notices, claim forms -- and more.
Personal Finance Documents
Over a dozen forms that let you handle financial situations you might face on any given day, such as disputing a credit card charge, lending or borrowing money to friends or family, creating bills of sale -- and more!
Home & Family Documents
Whether you need to authorize someone to travel with your child to another country, want to lend your car to a friend, or create an agreement with someone to take care of your elderly parent, Quicken WillMaker Plus can handle all these family situations -- and many more!
Wills and Living Trusts
Will
Self-Proving Affidavit (for Will)
Letter to Executor
Individual Living Trust
Shared Living Trust
AB Trust (aka Bypass Trust)
Certification of Trust
Assignment of Property (to Trust)
Reverse Assignment of Property (from Trust)
Revocation of Living Trust
Amendment to Living Trust
Leaving Others in Charge
Living Will (aka Health Care Directive)
Durable Power of Attorney for Finances
Information for the Attorney-in-Fact
Physician's Determination of Incapacity
Delegation Form for Attorney-in-Fact
Resignation Form for Attorney-in-Fact
Revocation Form for Recorded Durable Power of Attorney for Finances
Revocation Form for Unrecorded Durable Power of Attorney for Finances
Revocation of Health Care Directive
Final Arrangements Letter
Documents for Your Executor
Affidavit of Domicile
Employee Death Benefits Letter
Executor's Checklist
Executor's Letter to Financial Institution
General Notice of Death
Notice to Creditor of Death
Notice to Social Security Administration After Death
Notice to Homeowners' Insurance Company of Death
Notice to Vehicle Insurance Company of Death
Request for Life Insurance Claim Form
Request for Life Insurance Proceeds
Personal Finance and Consumer Documents
General Bill of Sale
Special (Limited) Power of Attorney for Finances
Revocation of Power of Attorney
Dispute Credit Card Charge
Request for Credit Report
Request Correction of Credit Report
Request Correction of Credit Report: Follow-Up
Request Correction of Creditor's Records
Creditor Verification Letter
Promissory Note (Amortized Monthly Payments)
Promissory Note (Balloon Payment)
Promissory Note (Payments of Interest Only)
Promissory Note (One Lump Sum Payment)
Security Agreement for Borrowing Money
Notice to Terminate Joint Credit Card Account
Notice to Put Name on Do Not Call List
Cancel Membership or Subion
Documents for Home and Family
Child Care Agreement
Child Care Instructions
Authorization for Minor's Medical Treatment
Authorization for Foreign Travel With Minor
Temporary Guardianship Authorization for Care of Minor
Elder Care Agreement
Pet Care Agreement
Housekeeping Services Agreement
Housesitting Instructions
Authorization to Drive a Motor Vehicle



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