Wills & Trusts
1. WILLS Additionally, while not critical, it would be a good idea to have a clause that revokes all prior wills, the identities of all who will be a beneficiary (those persons to whom you desire to leave your assets), and which items you desire to leave to them, and which person gets the assets if that person dies before you do. You also can name a guardian to look after your minor children. You can also name a personal representative to serve, and a trustee to serve if you are also creating a trust. Further, it's a good idea to have a clause naming a residuary beneficiary for the remainder of the estate, if any exists. The residue is what assets remain after all specific devises have been made. Oftentimes, the remaining estate is the greatest portion of the estate. The administrator can also use the remaining estate to pay government taxes and fees. It's also sometimes a good idea to offer a clause whereby you eliminate the requirement of posting of a bond. Numerous states require that the administratof of an estate post a bond (which is generally paid from the funds of the estate) to assure that they adequately perform their job. This can be avoided, and more of your assets can pass to your family, if you require this in your will.
Why is Having a Will Important?Noted attorney Robert L. Shapiro created this article on the importance of having a will. You wouldn't hand over your most important financial decisions to the government, would you? Of course not! In this article, Mr. Shapiro discusses some of the implications of not having a written document that illustrates your desires, what happens when you die without a will, and where to leave copies of your will.
What Type of Person Needs a Will?
A significant number of citizens of this country will pass away without having a will estabilished. The results of failing to create a will varies vastly with each person's specific situation. Each man and woman should consider drafting a will - the need grows with the increase of your assets - and your family relationships increase. It is of particular importance of parents with children who are still minors (those under age 18 in the majority of states), because of the fact that guardians can be named in a will, and that arrangements can be made for the economical support of your young ones, even beyond the age of eighteen.
Couples (married or not) need to consider the other partner's financial ability to survive if they were to die. If your better half were to die without having a will, the law's of your state may force the division of your assets of your estate (the decedent's property) with your kids, thus possibly creating a situation where you don't have enough money or assets to provide support for yourself. Additionally, any property that goes to a minor in a situation such as this would be subjected to a costly guardianship, which could quickly use up any inheritance. Further, the court usually will appoint a guardian - which may not be the individual(s) that you want looking after your kids.
Do certain people not really need to consider having a will?
The answer is: Yes. If you are a single, and have little assets in your name, then odds are you likely don't need a will. Also, if you care who gets a specific item or items, (a certain car, for example) if you were to die, then you could title the item as "joint tenants with rights of survivorship". The last person alive in a joint tenancy acquires full ownership of the item at the death of the other joint tenant. The possible negative to this is that you give the co-owner a present interest in the property for their life - you can't go back on this. Bank accounts and brokerage accounts can also be jointly held and will pass directly to the surviving joint tenant. If you don't have a will and your assets are titled in your name alone (and without a will), your possessions will go to the surviving closest heirs according to the laws of intestacy of your specific state (usually your parents or brothers or sistes -- and this situation may or may not suit your desires).
What occurs when a person dies and doesn't have a will?
If you die "intestate" meaning without having a will, then the laws of your state determine how the assets will be divided among your surviving heirs (or closest relatives with the right to inherit). Generally, the surviving spouse will get half the decedent's estate and any surviving children will get the other half. Grandchildren are generally next in line, then by parents, siblings, & other relatives of the decedent. If you die without having a will and don't have any heirs that are traceable, then all property passes to the state.
What happens if there is no will?
Generally, the estate is considered in "legal limbo" until the government appoints a person or entity to act as administrator of the estate (most likely, an heir) who must determine that no will exists, and give notice to all potential heirs that they may be in line to inherit. The duties of the administrator are similar to the many functions of an executor (paying existing debts, fees and taxes), and offers accounting for and the distribution of money to the surviving heirs. When no family member can act as the administrator, the government will appoint a public administrator to act in this role.
Do I need a lawyer to draft a will?
You don't need a lawyer to create a will. Wills drafted without the use of a lawyer can be legally binding, assuming that the correct procedures are followed (especially those requiring the use of witnesses). Several legal document preparation services can offer guidance on specific issues you may want to see addressed and on which procedures need to be followed. For individuals with relatively simple estates, a do-it-yourself will may work fine.
Do I need to notarize my will?
The answer is generally no. Usually, the critical thing is to have the signing properly witnessed.
What are the requirements to have a valid will?
It must be written. Simply having an audio or video recording whereby you indicate your wishes will not work. The will must be signed by the will's creator. It also usually must contain the signature of 2 (or, like in some states, 3) witnesses that are competent to act as a witness. The testator (will-maker), must be of sound mind--not incompetent, suffering from insanity, or mentally handicapped, and under duress or suffering the controlling influence of another individual.