Simple Documents to Capture Your Best Wishes
Establishing a last will and testament allows you to provide written instructions about how your property will be divided upon your death.
In your will, you designate an “executor” or “personal representative” of your estate who administers the probate estate and acts as a fiduciary. With the supervision of the court, your representative will distribute your property as you have outlined in your will as long as you have an effective plan in place.
A will is advantageous since a court may become involved in the distribution of your assets. By having established a will, you will be assured things go to whom you want them to go and that family dynamics will not affect your wishes.
If you have one or more minor children, it is critical to have a last will and testament so you can designate whom you would like to be the guardian of your children after your death.
What is Probate?
If your property is titled only in your name at the time of your death, then your property will go through a process known as probate. If you do not have a last will and testament, a court will order your property to be divided among your surviving relatives according to your state’s intestate laws. The courts, via the state statute, decide who will receive your property if you have done no planning. In essence, the state has written a will for you. It typically says that if you do not have a will at the time of death then a certain amount will pass to your spouse and a certain amount to your children. If you have no spouse or children, then more distant relatives will receive your assets. Obviously, most people want to have a greater say regarding who will receive their property, which is why it is important to establish a last will and testament.
What Passes Through a Will?
Many people are surprised to learn that life insurance, IRAs, annuity contracts, jointly owned property or assets, or any financial product that has a beneficiary designation will not pass through their last will and testament. The only assets that pass through a will are individually owned property or assets.
Do I Need a Will if I Am Married?
For assets not jointly owned by the married couple, a will is necessary to direct the passing of those assets. Many married couples set up what is referred to as a “sweetheart will,” in which spouses leave everything to the other spouse and then, at the second spouse’s death, to children or other beneficiaries. We recommend the option of adding a bypass clause to the “sweetheart will” that bypasses the spouse if they are in a nursing home or receiving government benefits. By doing this, you are assuring that the individually owned assets of the deceased are protected from nursing home costs.
Do I Ever Need to Revise a Last Will and Testament?
Our attorneys recommend you review your will whenever a “major life event” occurs. This can include:
- Marriage or Divorce
- Birth in the Family
- Death in the Family
- Relationship changes
- Moving to a New State or Region
- Changes in the Law
- Significant Shift in Assets or Finances
Your current legal documents may no longer be appropriate. If you need to draft a will or update the documents you already have, find a lawyer near you today.
