What are Wills?
Wills are documents that allow a person to dictate where their property is to go after they die. A Will can also designate a guardian for children if a person should pass away before their children are grown.
Wills are important
There are some defaults under the law that dictate where your property goes after you die unless you have a Will. For some, this is just fine. For most, they have a plan and want to be sure your wishes are carried out.
Property aside, mostly people rate their children as one of their greatest treasures. Who would you have care for your children? Your relative that lives the closest to you? Your wealthiest relative? Maybe and maybe not. You probably want your relative that Will love your children and raise them as you would. A judge won’t know who that is until you tell him in your Will.
A Will contributes to estate planning
A Will plays a key role in estate planning. It is one of four primary estate planning documents. These documents are Wills, Powers of Attorney, Living Trusts, and Advance Health Care Directives. Of these four, Wills most effectively transfer non-titled personal property owned by you at your death. Wills also establish who your desired guardian is for your children, if you have minor children in your care.
The other three primary estate planning documents operate as follows: A Trust holds property while you are alive. This property generally has a title and this property need not be probated to pass to your chosen heirs. Because proof that property is in a Trust may be required, Trusts should always be used in conjunction with a Will.
A Power of Attorney is a document that gives one person to act in the name of another person as if that person were acting themselves. Some common uses for a Power of Attorney include contacting and conducting business with utilities or government entities for someone who is getting too old, tired, or is too ill to properly handle their affairs.
Advance Health Care Directives, a derivative of the old living Wills, primarily helps a person with two things. Advanced Health Care Directives allow you to select an agent to speak to your health care providers and make some important decisions when you are unable to speak for yourself. This document also assists you in declaring when to pull the plug. It includes such options as designating that an agent can decide, that life should be prolonged, or that life support should be withdrawn under various pre-selected circumstances.
In sum, a Will doesn’t provide for your medical needs, or assist you in life like both a Power of Attorney and Advanced Health Care Directives. A Will also does not hold your property while in life and does not always avoid probate like a Trust. A Will, however, is key in transferring your property into your Trust as well as designate a guardian for your children.
How Wills are used when you die
When you pass away, a Will needs to be Probated. Probate is the process by which the personal representative obtains a court order directing them to distribute the property in accordance with the terms of a Will. Objections to the process and results are also handled in court. This can be an expensive and lengthy process if not used in conjunction with a Trust.
When using a Will in conjunction with a Trust, most attorneys draft the Will to be a “Pour Over” Will. A Pour Over Will simply states that all the property owned by the individual and not already in the Trust should be given to the Trust for distribution according to the terms of the Trust.
Many also unofficially distribute non-titled assets in a Will to those who would take under the Will. A Will can also transfer property outside of probate if used for a “small estate” and used in conjunction with one or more affidavits of a small estate. As long as no one objects, using a will outside of probate can be an effective use of a Will as well.
How you know if you need a Will
Many people wonder if they need a Will. To know if a Will is a good document for your estate plan, you should ask yourself the following questions:
Do I have property that I want distributed to someone when I die, and if so, do I care where or to whom it goes? Do I have children under the age of 18 or others in my care? Will my family fight over my personal belongings if I passed away without instructions as to where it should go and if so, do I love my family enough to wish peace for them? Do I want to do something good with my money or things after I die?
If you answered yes to any of these questions, then a Will may be right for you.
When do I need to change my Will and when do I need a new Will?
A change in a Will or a new Will may be appropriate when you have what attorneys call a “change in circumstances”. Changes in circumstances are a broad and generic term for people related changes such as a marriage, the birth of a child, the death of a family member or key person in the Will (such as the executor). A change in circumstances also covers changes in your financial status or that of the beneficiaries. You may also find that your original estate plan is not what you want anymore.
When to change a Will vs. when to start over with a completely new Will can be a matter of preference and cost. Traditionally Wills were amended by a document called a Codicil. Today this practice continues, but less often as we now have the ability to manipulate documents on a computer and reprint quickly. Generally a minor change to a Will, such as just changing the executor, or adding a child, can be cheaply accomplished with a codicil. A complete revamping of your entire estate plan probably calls for a new Will as the lawyers can generally draft a new Will faster than reading through your old Will and addressing every change you want made.
Where should I go for a Will?
There are many sources one can go for a Will. The least expensive, and possibly most likely to cause litigation, is to draft a Will one’s self. A person can also go to various online retailers or even purchase forms from an office supply store. These often work well, but are not always as flexible as you might want in your estate planning. Lastly, you can visit an attorney. Attorney Paul R. Maxfield emphasizes estate planning in his practice at the Abbott Law Firm.
The Abbott Law Firm has been helping businesses and families prosper for 20 years. To see what Paul Maxfield can do to help you prosper, call for your estate planning consultation today. (801) 374-3000