9 Facts About Last Wills & Testaments
BY CORY A. LEVINE, ESQ.
A Last Will & Testament (a "Will") is a legal document in which you communicate your final wishes regarding your possessions and dependents. Probate is the process in which a Court determines if your Will is valid and confirms that your directives are fulfilled.
Creating a Will is one of the most critical things you can do for your loved ones. Putting your wishes on paper helps your heirs avoid unnecessary issues, and you gain the peace-of-mind knowing that your possessions will end up in the right hands.
1. What if I don't have a Will when I die?
Answer: If there is no Will, your property is distributed according to the state law of intestacy and not necessarily as you planned.
2. What are some reasons to have a Will?
- Guardianship: You, not a court, can choose the Guardian for your children.
- Money Saved: You can save the estate money by waiving bond provisions that could be required by the court.
- Property to Minors: You can avoid assets from going directly to minors (which often requires court involvement).
- Appointment of an Executor: You can determine who is responsible for your assets and their distribution.
3. Do I need a Will?
- If you have minor children: Definitely.
- If don't have minor children: Probably, unless: a) Your personal wishes fall in line with the laws of intestacy; and b) You don't wish to choose a personal representative to preserve, gather and distribute your assets.
4. How long does a Will last?
Answer: A properly drawn and executed Will is generally effective until it is changed or revoked.
5. If I am married, do we get separate Wills?
6. When should I change my Will?
Answer: Usually when:
- There is a change in circumstances;
- You wish to change a bequest;
- You wish to change the names of Executors, Guardians or Trustees; or
- You wish to add or remove someone from the Will.
7. Who should I appoint as Executor?
Answer: The Executor (or Executrix if a woman) should have good judgment. Geographical proximity to your property (especially real estate) should be considered as well. The Executor will typically hire a lawyer, accountant and other professionals if they are needed.
8. What are some typical excuses for avoiding drafting a Will?
- "My kids will respect my wishes"- However, their present or future spouses could present problems. Also your estate might not be distributed as you wish or disputes may occur since some family members might not have a clear understanding of all your wishes.
- "I want my property to go to my spouse anyway"- Your property might not just go to your spouse and may have to be split with your children. This could result in the court having to appoint an independent person to approve the sale of assets (like your house) which will cost money and prevent your spouse from making independent decisions. It might also affect your children's finances (i.e if they are later applying for college financial aid, tax returns, etc.).
9. What issues arise with website/computer generated forms?
Answer: Typical problems:
- Most website/computer generated forms are not state-specific;
- The proper procedures might not be followed (i.e. improper individuals serving as witnesses, etc.);
- Undue influence concerns could be raised by others;
- You cannot use a "Self-Proving" Affidavit, so Witnesses typically have to be located after you die and might have to appear in court. A "Self-Proving" Affidavit can only be used when an Attorney supervises the Will; and
- Your wishes might not be properly reflected.