Wills are legal documents that provide many estate planning benefits, including letting you specify how your property will be distributed when you die. A will is essentially your instructions and wishes, written according to legal rules so they can be followed when you are no longer here. For many people, wills are part of a complete estate plan. Here are answers to some of the most often-asked questions about wills.
Q. Why should I have a will?
A. There are several important reasons to have a will. A will lets you:
• name your beneficiaries. These are the people and charities whom you want to receive your property when you die.
• select a guardian for your children in case you and your spouse die while they are minors. The guardian will raise your children and manage their money until they reach adulthood.
• select an executor. The executor will oversee your estate’s financial affairs during the probate process, including making sure your debts are paid and that your property is distributed according to your will.
• set up a trust. This can help save taxes.
Q. What if I don’t have a will?
A. People who die without a will are referred to as dying "intestate." If you die intestate, your property will be distributed according to state law rules of intestate succession. Generally, property goes to your surviving spouse and children. If you have no spouse or children, certain other relatives become entitled to receive the property. If none of these relatives are alive, your property goes to the state. When property is distributed under state rules of intestate succession, it likely won't be distributed the way you want, since it goes to recipients without regard to whether they need it or how much they need. Also, people who you might not want to get any of your property may receive some of it.
In addition, if you die without a will, the critical decision of who will be your children’s guardian will be left to a judge. Also left to a judge’s discretion is who will serve in the important position of executor.
Q. I don’t have much wealth or property. Do I still need a will?
A. It’s still a good idea to have a will. Even if you don't have much property, you likely still want to make sure the property you have goes to the friends, relatives and charities that you want to receive it. By having a will, you will have the peace of mind knowing your property is distributed the way you want, that the person serving as executor is your choice, and that your children will be raised by the person you want (if you and you spouse die while they are minors).
Q. What if my will tells who gets some of my property, like my house, but later I want to sell it?
A. While you are alive, you can always sell or give away property that is mentioned in your will. Then you can update your will.
Q. Does a will cover everything I own?
A. No. Some property is not covered by a will. This includes:
• life insurance. Money from life insurance goes to the person named as the beneficiary in the policy.
• living trust. Property in a living trust goes to the beneficiaries of the trust.
• joint tenancy property. Property you hold with someone in joint tenancy automatically passes to that person when you die.
• retirement plans. Money from a retirement plan goes to the person named in the plan as the beneficiary.
Q. If I don't want one of my children to receive anything under my will, what should I do?
A. In most states, children do not have the legal right to inherit anything from their parents. If you don't want a child to receive anything, you can include a provision in your will disinheriting your child. Sometimes because of strained family relations or because a child is wealthy, parents choose to not leave anything to a child. If you have a child and your will leaves property to other people without mentioning the child, the law in most states will treat him or her as being accidentally omitted and give the child a share of your estate.
To avoid this, people who want to disinherit a child include a "disinheritance" clause in their will. This provision may specifically name the child being disinherited or at least describe him or her so there is not doubt about who should not receive any of your property. Because the law resists disinheritance of children, and because laws vary between states regarding the inheritance rights of children who are not mentioned in a will, it is best to consult a lawyer for help making a will that leaves nothing to a child.
Q. Can I change my will?
A. Yes. You can change your will any time while you are legally “competent.” You should consider changing your will when: there’s a birth or death in your family; your financial condition has changed significantly; you move to another state; you want to name a new guardian or executor; you marry or divorce; you want to add or remove beneficiaries; you want to reallocate how your property will be distributed; or if your will was made long ago and may not be up-to-date with current tax and other laws. Even if none of these events has happened, it is still a good idea to review your will yearly to make sure it is up-to-date with your current wishes on who you want to receive your property when you die.
Q. How do I change my will?
A. There are two ways to change your will. One way is to add an amendment to your will. This is called a “codicil.” Another way is to make a new will that replaces all prior wills. Codicils and new wills must be prepared according to legal requirements.
Q. What kind of will should I have?
A. There are several different types of wills, including “holographic” wills and "formal" wills. A holographic will is a will that is written in the person’s own handwriting. A formal will is usually typewritten and signed in the presence of witnesses. There are certain legal requirements for making both holographic and formal wills. Also, holographic wills are not valid in all states.
Q. Do I need a lawyer's help in making my will?
A. It is best to seek legal help in making a will. Laws for making wills are specific, and you will want to make sure everything is done right. If there are problems with how your will was made, it could be subject to a challenge and all or part of it may be invalidated by a court. Also, lawyers can explain how estate taxes affect you and help you make a will that lowers your tax burden and leaves more to your family.
Q. I would like a will prepared. What should I do in advance?
A. Make a list of all the property you own. This includes your home, money in the bank, stocks and bonds, cars, jewelry, collectibles, any business you own, and any property you own together with others. Also list your family members, loved ones and close friends. Think whether you want certain people to receive specific items.
Q. Where should I keep my will?
A. Your will should be kept in a safe place, like a safe deposit box at a bank or in your lawyer's safe. Your executor as well as your close friends and family members should know the location of your original will.
These are some of the most common questions people have about wills. If you have questions about wills or other estate planning issues, please call us.
Contact an attorney at Triscaro & Associates today. Please call us for all your legal needs. We offer a full range of legal services to individuals, families and businesses, including personal injury, estate planning, real estate, family law and business matters. We are dedicated to providing the highest quality legal services at a reasonable cost.