WILLS

Frequently asked questions

• What is a Will?
• What qualifies as a Will?
• Who can make a Will?
• What happens to my property if I do not have a Will?
• What happens to my property if I do have a Will?
• Other than choosing who receives my property, what other reasons are there for having a Will?
• Do I need a lawyer to draft my Will?
• How long will my Will be valid?
• Is a Will the only way I can leave property to friends and family?

Q. What is a Will?

A. A Will is a document signed by an individual that sets forth what that individual wants to happen to his or her property after his or her death.

Q. What qualifies as a Will?

A. Not all signed documents are considered valid Wills. Every state has laws that explain what specific criteria a person must meet to have his or her signed document considered a valid Will. In some instances, certain formalities must be observed, which may include having witnesses co-sign the Will or sign certain affidavits.

Q. Who can make a Will?

A. Generally, any mentally competent individual 18 or older may create a valid Will. In certain instances, an otherwise valid Will can be considered invalid if the individual making the Will suffered from mental health issues that rendered him or her incompetent. However, simply being diagnosed with a mental health disorder is not typically in and of itself sufficient to render one incompetent to make and/or sign a Will.

Q. What happens to my property if I do not have a Will?

A. If you do not have a Will, the laws of your state will determine what happens to your property under a set of “default” rules. Often, when a person passes away, his surviving spouse will receive his property under those default rules. Where there is no surviving spouse, the decedent’s children or grandchildren will receive his property. If he has no children, then his parents, siblings, aunts and uncles, cousins, or even more distant relatives may be the default recipients of his property, depending on who remains living at the time of his death.

Additionally, when one dies, one’s estate – that is the collection of one’s remaining assets and debts – will be administered by some individual who has “qualified” for that responsibility before a clerk of the local court. In absence of a Will, your state’s default statutes control, and almost literally any individual can qualify to administer a decedent’s estate. Because an administrator will sometimes have to exercise his or her discretion in deciding what bills to pay, what property to sell, and what specific pieces of property to give to each particular heir, the final disposition of your property can be significantly different depending upon who serves as your estate’s administrator.

Q. What happens to my property if I do have a Will?

A. Almost anything you want. When you have a Will, you get to decide whom – if anyone – receives your property when you die. You may very well not want all of your property to default to your spouse, or your children or your parents. Even if you only wish to leave a few specific pieces of property to other beneficiaries, you will need a Will to do it. You can provide for a favorite relative, a needy friend, a charity, or even a beloved pet through your Will. A Will can also help insure that if you are divorced or widowed and then remarried, your children from your prior marriage are provided for.

Additionally, in your Will you can designate the individual who will administer your estate (called the “Executor” in this instance), and can therefore insure that the person with that responsibility is trustworthy to carry out your written wishes, and to exercise sound discretion.

Q. Other than choosing who receives my property, what other reasons are there for having a Will?

A. In addition to directing how you want your property divided, and designating the individual who will carry out that task, a Will can reduce the expense of administering your estate, can reduce your estate’s state and federal tax liability, allow you to designate a guardian for your minor children, create a trust for the support of your children, broaden or limit the power of your executor, set forth funeral plans, and can confer other benefits depending on your particular circumstances.

Q. Do I need a lawyer to draft my Will?

A. Strictly speaking, no. However, the individual drafting your Will must know the law of Wills and Estates in order to insure that it is not only valid, but properly effectuates your actual wishes. Your Will does you and your beneficiaries no good if it is invalidated for a failure to comply with a particular formality, or if the language used is too confusing or ambiguous for an executor – or a court – to understand what is supposed to happen to your property. A practicing lawyer is trained and qualified to understand the intricacies of the law, to draft a document that sets forth your wishes in such a way that they will be clearly understood, and to supervise your Will’s signing so that no required formality is ignored.

Q. How long will my Will be valid?

A. Your Will does not expire until you either change it or revoke it. In the event that you decide to change or revoke your Will, it is important for you to understand the law concerning these acts. Sometimes, you may think that you are simply adding to your Will, when you are in fact replacing it, or vice versa. Additionally, getting divorced may affect your former spouse’s entitlement to receive property under an old Will, and getting married may entitle your new spouse to a share of your property, even if he/she is not named in your existing Will.

Q. Is a Will the only way I can leave property to friends and family?

A. No. In many instances, owning property with another individual as “joint owners with right of survivorship” will allow that property to pass directly to that other person. Certain assets, such as life insurance policies, pensions and retirement plans, may allow you to designate a beneficiary to be paid upon your death, without the need for a Will.

However, owing or attempting to pass along property in this manner can have both legal and practical consequences. In some instances, you are giving control of an asset or money to someone else during your lifetime, which can reduce your use and enjoyment of that asset, or which might create feelings of jealousy or favoritism among excluded family members. In others, joint ownership might cause you or your surviving co-owner to face tax liability that could be avoided with a Will.

You should discuss with your attorney the various different types of co-ownership, and their advantages and disadvantages as compared to a Will in effecting your intended division of your property.