Practices

Wills

A last will and testament provides for the distribution of property owned by you in your individual name at the time of your death. Generally, you can give your property in any manner you choose, subject to some laws which prevent disinheriting a surviving spouse. Your will cannot govern the designation of properties that pass outside of your probate estate, i.e., joint property, life insurance and retirement plans, unless they are payable to your estate.

Wills can be of various degrees of complexity. They can be used to achieve a wide range of family and tax objectives. If a will distributes assets outright to the beneficiaries, it is sometimes characterized as a simple will. If the will establishes one or more trusts, it is referred to as a testamentary trust will, i.e. more complex. A will may also leave property to a pre-existing revocalable living trust, in which case it is called a pour over will. In the latter two cases, the purpose of the trust arrangement (as opposed to outright distribution) is to ensure continued property management and creditor protection for family members and to minimize estate taxes.

Aside from disposition of your assets, there are a number of other important objectives that may be accomplished with your will: (1) you may designate the guardian and conservator of your minor child or children; (2) you may designate a trustee to manage the inheritance of a child or children; (3) you may designate a personal representative (the person or institution who handles your probate estate) and eliminate the need for a bond; (4) you can indicate that you prefer unsupervised administration of your estate to reduce costs; (5) you can choose to provide for someone who is not otherwise interested in your estate; and (6) you can name an alternate or successor to the various roles, e.g. , an alternate personal representative in case the first one cannot act for some reason.

Finally, there are several myths about wills. It is commonly believed that by having a will you can avoid probate. Simply put, this is false. In and of itself, having a will does not cause or avoid probate. Probate is caused when a person dies and leaves property in his or her individual name, regardless if he or she actually had a will. So, a will is actually probate neutral. Many people also believe that a beneficiary can go to a local bank and ask it to transfer an account to him or her based upon the will. This is not true. The will first has to be admitted to probate and a personal representative appointed. The appointed personal representative can then transfer the bank account by using letters of authority.

This summary is intended as a source of general information. If you have questions regarding this summary, please contact one of our attorneys who specialize in this area.