Of all the documents that constitute a typical estate plan, the Will is by far the most recognized. There are several different types of Wills, and today’s focus is on a basic or “simple” Will. You may have a general sense of how a Will works and why it’s important. The purpose of this post is to answer three questions:
1) What is a Will?
2) Why is a Will important?
3) Do I need a Will?
NOTE: Some of the terminology used in Wills can be cryptic to those not familiar with estate planning, so I will take a moment and define a few of the more nebulous terms. “Testator” or “Testatrix” refers to the person for whom the Will is drafted, with the suffix dependent on whether the person is male or female. “Estate” refers to all assets or property held by the Testator. “Personal Representative” refers to the person or entity chosen by the testator to handle the administration of the testator’s estate. “Descendants” refers to individuals who are biologically related directly to the testator or the beneficiaries of the Will, depending on the context.
Part I – What is a Will?
The Will, simply put, is the foundation upon which your estate plan is built. An estate plan without a Will is a fragile house of cards, so we advise all of our clients to execute a Last Will & Testament as an integral part of their overall estate plan.
The typical Will is broken up into sections or “Articles” that provide answers to the questions that arise at the death of the testator. They three most common articles cover the following areas:
a.) Personal Representative: The personal representative is an individual appointed by the testator to administer the estate of the testator. The most common choices for a personal representative are the spouse, parent, close friend, or trusted advisor (such as an attorney or accountant) of the testator.
b.) Distribution of Assets: This Article is the roadmap for the disposition of assets from the testator’s estate. This can be a relatively straightforward distribution to family members, or friends, or you can choose to leave percentages to various organizations or charities. There is an infinite array of choices for how to distribute the assets from your estate, and it depends on your wishes regarding those assets.
c.) Guardianship: If the testator has minor children, the guardianship article will appoint a guardian in the event that the testator dies before their children reach the age of majority.
In order to be valid, the Will must be signed by the testator and witnessed by two individuals. Though beneficiaries of the Will are permitted to be witnesses, it is the preferred practice of most law firms (McCarthy & Golden, LLC included) to have witnesses not be beneficiaries to avoid any appearance of bias.
Part II – Why is a Will important?
When a person dies, their estate must go through probate. Probate is the process by which the court of appropriate jurisdiction handles the estate of the deceased. The goal of probate is to transfer assets owned by the deceased to the persons or organizations that the deceased has designated to be the recipients of the deceased’s assets in their Will. Without a Will, a person dies intestate, and their estate assets are distributed under the laws of intestacy. These laws vary by state, but a simple explanation is that a court will determine how assets are to be distributed from the estate based upon the law, as well as determining who will act as “administrator” of the estate (the “administrator” is a court appointed person who performs the same duties as a personal representative) Under this same scenario of a person dying intestate the Court would also determine who would act as the guardian of the deceased minor children. Thus even if one has little or no assets but has minor children a Will is a critically important document because it appoints a person or persons to act as guardians for the deceased minor children.
A will is important because it makes the wishes of the testator known to the court, and makes the probate process quicker and more efficient. As a side note, it is better to avoid probate all together and usually this can be accomplished with the execution of a Trust and the proper titling of assets to that Trust. Trusts and their purposes will be discussed in a future \ posting.
Part III – Do I need a Will?
It is the position of McCarthy & Golden that all individuals over the age of 18 should consider having a will. If your assets are limited or you don’t have any children, you may not understand the necessity of having a Will. But as tends to happen, people grow older and advance in their careers, assets begin to accumulate, and those same people may also get married and have children, and before they know it, those people need a Will to ensure their wishes regarding the property in their estate and the needs of their family, friends and possibly their wishes with respect to charitable giving are carried out.
To sum it up, your Will is the first and most important step in the creation of your estate plan, and its purpose is to memorialize in writing your wishes regarding the disposition of your estate upon your death.
The attorneys at McCarthy & Golden, LLC advise that if you are recently married, have had a change in marital status, become a new parent, purchased a home, received a financial windfall, or have moved from one state to another that you consider contacting us about the execution of an estate plan. It is critically important that you protect your assets and your family, and the Will is the first step in creating a full protection plan for your estate.