Planning with Wills
A Last Will and Testament creates a set of rules to be followed in the event of the person’s death. For instance, a Will:
- Names Guardians for Minor Children
- Names a Personal Representative
- Creates Rules for Distributing Property
Below we’ll look at each of these functions in detail.
It should be noted, however, that the use of a Will by itself does not avoid the need for Probate proceedings. A Will, first and foremost, acts as instructions to the probate court to simplify proceedings.
For all but the smallest estates it’s usually a good idea to create a Living Trust. With a Living Trust, you transfer the title of your assets into the name of the Trust. This is a process called “Funding Your Trust”.
A complete estate plan will include a “Pour-Over Will”, which allows for the movement of any assets not held in the name of the client’s Living Trust to be transferred to the Trust upon death. But again, this can only be done in a Probate Court. This is why it’s so important to have a properly funded Trust.
For many people it’s important to avoid probate because of monetary or privacy concerns, and to minimize the burden placed on their loved ones after their death.
A properly prepared Last Will and Testament accomplishes the following:
Names Guardians for Minor Children: One of the most important purposes for having a Will is to name guardians for minor children. In the event of your death someone will be required to take over your parental responsibilities.
Consequently, parents need to take great care in choosing a guardian. Failure to author a Will
could result in a court appointing someone as guardian of your children who you might not trust to be in that position.
Names a Personal Representative: A Will names a Personal Representative, sometimes called an Executor. The Personal Representative is the individual charged with carrying out your instructions.
The law recognizes the Personal Representative as a fiduciary. They must exercise sound and prudent business judgment in carrying out their responsibilities under the Will. In large estates, the Personal Representative may be required to post a bond to insure fulfillment of their duties.
Personal Representatives may be paid for the work that they do. Usually, adult children serving as
Personal Representatives of modest estates do not charge the estate for their services.
Distributes Your Estate: Last Will and Testament provides instructions for the distribution of your estate, either by Specific Distribution, wherein you identify a particular piece of property to go to a particular person, or by Residuary Disposition, where you typically divide all the rest of your estate among certain individuals on a percentage basis.
But sometimes it’s appropriate to provide for unequal distributions: For instance, parents often recognize that some children have greater needs than others. Sometimes adult children have proven themselves unreliable and unsuitable for the receipt of a large amount of money. And sometimes the distribution can come with strings attached, or stipulations for actions that must be taken by the inheritors before they can receive their distribution. These stipulations can include beginning treatment for alcohol or drug abuse.
Revoking Prior Wills: The maker of the Will, sometimes called the testator, declares the document to be his or her last Will and testament. In doing so they revoke any prior Wills.
It’s important for anyone who has a prior Will to make certain that they are expressly revoking it. Multiple documents can cause confusion and lead to fights among relatives.
If the testator intends to make only minor changes to a prior Will they should do so with a document called a codicil.
A Last Will And Testament, By Itself, Is Usually Not Enough.
Wills are a standard component of the estate planning packages we create for our clients.
Please contact us if you’d like to learn more about what we can do for you.