A “will” also sometimes referred to as ones last will and testament, is a legal document that disposes of your “estate” upon your death. Your “estate” is all the money, personal and real property you own. If you have a simple estate plan (such as the desire to leave your entire estate to your spouse), your will can be a very basic document, consisting of only a few pages. In about half the states, it can even be handwritten.
However, if you have a more complicated estate plan (such as the desire to provide both for your spouse and for minor children of a prior marriage), or if the value of your estate exceeds a half-million dollars, you will probably require a longer and more complicated document.
Q & A
What are the advantages of having a last will and testament?
You can decide who will inherit your property upon your death. Without a will, your property will pass to those people whom the State designates as your heirs.
If minor children survive you, you can designate in your will the person you wish to serve as the guardian of your children.
You can designate in your will the person you wish to be the “executor” of your will. An executor (called a “personal representative” in some states) is the person legally charged with carrying out the terms of your will. The executor gathers your property, notifies creditors of your death, pays any debts due, and distributes your remaining property according to the wishes expressed in your will. If you leave no will (i.e., if you die “intestate”), the court appoints someone to make sure that your property is distributed according to the laws of the state.
The person appointed as your executor may be required to post a performance bond that must be purchased from an insurance company. You can avoid the cost of the bond by specifying in your will that your executor is to serve without bond.
Will assets that I placed in trust be part of my probate estate?
No. If you created a valid living trust, the property you placed in the trust during your lifetime will pass according to the terms of the trust and not under the provisions of your will. If you want to change the terms of the trust, consult your attorney. Normally, you cannot change the trust’s terms through your will.
Should I use a lawyer for estate planning?
If you have a small estate and an uncomplicated estate plan, you might be able to draft your own will. Make very sure that you have followed all of the legal requirements for a valid will – otherwise your desires as to what should happen to your property will not be followed and your property might pass to people you did not intend to receive it.
If you have a sizable estate or if you have a complicated family situation (such as children from more than one marriage), you will probably be better off seeing an experienced estate planning attorney. A lawyer can help you structure your estate plan to minimize both taxes and probate fees and see that your property goes where you want it to go. The lawyer can also advise you of alternative devices (such as trusts) that can save you money and/or increase your control over the property.
How often should I review my will to make sure it still represents what I want to happen to my property after my death?
Look it over at least every five years. The birth of a child is a good time to review the provisions of your will. If you marry, you should draft a new will.
If you separate and are considering divorce, you should probably draft a new will. Remember that divorce proceedings may take years to complete. If you die during this period without a will, your spouse will take his or her share according to your state’s “intestacy” laws. In a community property state, that may be all of the community property – the property that was earned during the marriage. If you don’t want your spouse to get this, you should draft a will (or a new will if you already have one).
If you have inherited property or if through some other means your holdings have increased, you should review your will and entire estate plan. Conversely, if your estate has decreased significantly, you should review your will and estate plan.
If your relationship with one of your beneficiaries has deteriorated, you should review your will.
Finally, you don’t need a lawyer to make a will, and there are plenty of good books and will building programs that will allow you to draft a legal will yourself. Notwithstanding, if you have a complicated family situation, a large estate, and you would rather not figuring out how to do it on your own, consider hiring an experienced estate planning attorney to help you.