What You Need to Know
About Wills
A will is a legal document by which you state
how your property is to be divided at the time
of your death. The principle reason for
preparing a will is to control the manner in
which property is passed at death. Other reasons
include naming the individual who will control
the estate, naming a guardian for minor
children, appointing a trustee to control funds
and in many cases to engage in tax planning.
Most wills include language that accomplishes
the following tasks:
■ Revoke any prior
wills and
codicils.
■ Dictate wishes
regarding payment of debts and taxes.
■ Provide for
specific gifts to be paid after the specific
gifts are made.
■ Appoint necessary
fiduciaries.
Limitations On Distribution By Will
Certain types of property cannot be
transferred through a will. The following types
of property are generally dealt with outside the
will:
■
Jointly held
property such as real estate and bank accounts.
■
Pension and other
employment benefits with named beneficiaries.
■
RA accounts with
named beneficiaries.
■
Life insurance
policies with named beneficiaries.
■
Bank accounts
which are designated as POD (pay on death) to a
specific
individual.
The beneficiaries of these types of assets
can only be changed by following the contractual
requirements of the company. If the named
beneficiary is deceased, then the asset may
become subject to the provisions of the will.
Beneficiaries
Generally, under state law you are not
obligated to leave property to any specified
individual. There may be a provision in the law
for a spouse who is left out of a will to claim
a spousal share if certain conditions are met.
This situation might arise where a will is made
prior to a marriage or a spouse is omitted from
the will intentionally. Children born or adopted
after a will is executed may also make a claim
on the estate under certain conditions. If you
are not leaving a share to a child it may be
prudent to make a reference to that fact in the
will, though it is not required.
Will challenges are sometimes brought by
disinherited children who claim the descendant
was not of sound mind when the will was made or
were unduly influenced by someone else to
exclude that individual. It is valuable to
document the reasoning behind the decisions you
make if you treat children unequally. It is also
important to seek your won legal advice. Using
the attorney who does work for one of our
children is an invitation to litigation if that
child ends up being the major beneficiary of
your estate.
Holographic Wills
A will which does not meet the usual
requirements for execution may still be admitted
to probate if the signature and material
provisions are in the handwriting of the
testator. However, to be admitted to probate the
will must be proved before a Superior Court
Judge. the expense of filing the complaint may
exceed the amount some attorneys charge to
prepare a simple will. Although holographic
wills are dealt with differently in each State,
this type of will should generally be avoided.
Store Bought / Computer Generated Kits
If the requirements of execution are met,
these wills are valid if witnessed. Many people
do not have them properly executed or forget to
name a fiduciary resulting in their wishes not
being followed. Be wise and make certain the
requirements of the law are followed. The manner
of execution is not an option. An effort to save
a few dollars today may cost your estate
hundreds or thousands of dollars later. The old
penny wise and pound foolish maxim is applicable
here.
Execution
All wills should be executed so they will be
self-proving. This requires two witnesses and a
notary or attorney in addition to the testator's
signature.
Storage
Keep the original will is a safe, secure
location. A safe deposit box is okay if you
think it is secure. A box can be opened at the
time of death to remove a will and life
insurance policies. It is advisable to let your
executor know where the original will is stored.
Note: some states do not have a will
registry.
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