A Last Will and Testament is the legal document that controls the disposition of your property at death and may provide for guardianship for your children after your death. A will is not effective until death. As long as you are living, your will has no effect and no property or rights to property are transferred by it.
Your estate consists of all your property and personal belongings that you own or are entitled to possess at the time of your death. This includes real and personal property, cash, savings and checking accounts, stocks, bonds, real estate, and automobiles. Although the proceeds of insurance policies may be considered part of your estate in some states, a will does not change the designated beneficiaries of an insurance policy. The proceeds of an insurance policy will normally pass to the primary or secondary beneficiary designated on the face of the policy. Even if you do not have very much, you probably still have some things you would like to pass on to your loved ones. Your estate grows daily in value through repayment of mortgages, appreciation of real estate, stocks and other securities, possible inheritances from other relatives and other factors.
Avoid family disagreements. Many families struggle over who should get what. A will allows you to give your things to whomever you want, not to whomever a judge decides will get it.
SOME TERMS YOU SHOULD BE FAMILIAR WITH:
ESTATE: All that one owns in real estate, personal property and other assets.
EXECUTOR: The person appointed to manage the estate of a person who has died. Unless there is a valid objection, the judge will appoint the person named in the will to be the executor. This should be a competent person that you trust and who has the time to carry out the terms of your will. It can also be an attorney or a bank.
GUARDIAN: A person who will take care of your minor child if the other parent is unable. Naming a guardian for your child only expresses your wishes. The court makes the final decision in the appointment of the guardian.
HOLOGRAPHIC WILL: A handwritten Will that is written, dated and signed by the testator. (The person making the will.)
INCAPACITY: Lacking the ability to understand one’s actions.
INTESTATE: When a person dies without leaving a valid will.
PROBATE: The process of proving a will is valid and then doing what was stated in the will.
TESTATOR: A person who has written a will.
BENEFICIARY: A person who receives property through a will is known as a beneficiary.
SECONDARY BENEFICIARY: Those who inherit property in the event the primary beneficiary dies before you.
CODICIL: A written modification to a person’s will, which must be dated, signed and witnessed just as a will would be, and must make some reference to the will it amends.
Any person may make a will who is eighteen (18) years of age or older and of sound mind. Being of sound mind means that you have the ability to understand the consequences of your actions. Your will can be challenged if someone feels you were not of sound mind when you made the will. In addition to being eighteen years old and of sound mind, in order for a will to be valid, it must be in writing, the testator (person making the will) must sign it, and, if typed, two or more witnesses are needed. Oral wills are not valid. Your legal residence is the state in which you have your true, fixed and permanent home, and to which, if you are temporarily absent, you intend to return. Voting, paying taxes, owning property and motor vehicle registration are some indications that one is a legal resident of a state. Your legal residence may affect where your will is probated and the amount of state inheritance or estate tax that may be paid at death. Generally speaking you are free to give your property to whomever you desire. However there are some exceptions. Most states have laws that entitle spouses to at least part of the other spouse’s estate. This statutory share ranges from 1/3 to 1/2 of the other spouse’s estate. Some states also provide shares of the estate to children of the decedent.
Insurance proceeds and jointly owned property may be controlled by other provisions of the law.
A guardian should be named in a will to ensure that the minor children and their estates are cared for in the event that both parents should die. Your guardian should be chosen with great care as this person will be charged with the duty of raising your children and managing their legal affairs. Do not automatically assume that your parents or any other relative will be suitable guardians. A substitute guardian should also be chosen with the same care as the primary guardian just in case the primary guardian cannot serve in that capacity. This decision on your part will be of great assistance to the court in determining who will be granted custody of your children.
Joint bank accounts and real property held in the names of both husband and wife with right of survivorship usually pass to the survivor by law and not by the terms of the deceased’s will. There may be cases in which it is not to your advantage to hold property in this manner. When a person dies without a will (intestate) the property of the deceased is distributed according to a formula fixed by law. In other words, if you don’t have a will you don’t have any say as to how your property will be divided. Usually a person would prefer that all of his estate go to the surviving spouse. If there are any children under 18 the property cannot be delivered to them and a guardian must be appointed for them. Probate is the process of proving a will is valid. You must file the will with the clerk of the court in the county where the deceased person lived, along with a petition to have the court approve the will and appoint an executor (or executrix, if female). The court will then determine if the will is valid. It usually costs less to administer an estate when a person leaves a will. A properly drafted will can take advantage of Federal and State tax laws.
You can change your will with a writing called a codicil . A codicil can add to, subtract from or modify the terms of the original will. Keep the codicil with the original will. Choose a safe place where someone else can find the will after you are gone. Someone you trust should know that the will exists and where it is located. A will does not have to be recorded or filed with anyone until after death. A will can be be deposited with the probate court for safe keeping.
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David Fagan
