What is a Will?

A Will is legal document that must be created and executed under very strict and specific formalities required by state law. In your Will, you direct how your personal and financial affairs will be finalized, how your debts and obligations will be paid, and how the balance of your property will be managed and distributed to your intended beneficiaries. It says “who gets what” and also, in some cases, “who does not.”

Your Will is only legally effective at your death, after the probate court rules that your Will is valid. This means that you can change your Will at any time before you die as long as you possess the necessary mental capacity to do so.

What is most important to remember about a Will is that while you may execute a Will today, it will not become effective to determine the administration and distribution of your property until sometime in the future – and often that future is a long way off. After your death, your Will cannot be changed, even if there is evidence that you would have changed it had you gotten around to it. Therefore, to the extent possible, your Will should take into account various contingencies and conditions that might occur or not occur. Obviously, not everything that will happen in the future can be anticipated, but if you now have strong feelings about certain possibilities, then it is well worth your time to consider what you would want to happen.

For example, Sally (who is unmarried and without children) executes a Will today that leaves her entire estate to her niece, Jane. Many years later, Sally has a falling out with Jane and plans to visit her lawyer to have her nephew, Stanley, substituted as the beneficiary. But she never actually executes a new Will. Result: Jane will inherit Sally’s estate.

Why should I make a Will?

You should make a Will to ensure that your property passes to the people and/or charities you select, and is managed by those whom you trust. Otherwise, state law will direct where your property will go and a court will appoint the executors, trustees, and guardians (if you have minor children). While the outcome may match what you would have done, it would happen by coincidence, not because you planned it.

What happens if I die without a Will?

If you die without a Will (known as ‘dying intestate’), your property passes according to the “intestacy laws” of your state of primary residence at your death. Although the intestacy laws of different states can vary considerably, a common pattern of distribution is set forth below.

If you die without a valid Will and:

1. You are survived by your spouse but no children (and if your spouse also has no children), then your spouse will inherit your entire estate.
2. You are survived by your spouse and children, each inherits some portion of your estate. If either you or your spouse has children and other descendants who are not children or descendants of both of you, then the share distributed to each will differ.
3. You are not survived by your spouse, but you are survived by your children, your children will inherit your entire estate outright in equal shares. If a child of yours does not survive you and leaves his or her own descendants (i.e., your grandchildren, who are also your descendants), the child’s share will be divided among his or her descendants. If any of your children are minors, the assets would be placed under the control of the probate court until they reach age eighteen (18), and the court appoints the person(s) to manage the money and care for your children.  This causes a great deal of complexity and difficulty that can be avoided by having a Will.
4. If no spouse, children or grandchildren survive you, the estate goes to your parents, and if they do not survive you, then to your siblings, with the share of any sibling who does not survive you passing to his or her descendants (i.e., your nieces and nephews), if any.
5. If you are not survived by a spouse, children, grandchildren, other descendants, parents, siblings, nieces or nephews, then your entire estate passes to your grandparents, and if neither of them survives you, then to your aunts and uncles (or their descendants, your cousins, will inherit the share of a deceased aunt or uncle).
6. If none of the above survives, then your nearest blood relatives will inherit (your next of kin).
7. If none of the above survives, your estate goes to the State.

How do I change my Will?

If you need to make minor changes or additions to your Will, you can prepare a document known as a “codicil,” which is simply an amendment to your Will. Be careful how you do this. The codicil should be a separate document and must be executed with the same formalities as your original Will.

Can anyone object to my Will?

No, only your rightful heirs may object. And they can only object based on certain grounds. Among the most common reasons for objecting to a Will are:

1. The person making the Will lacked sufficient mental capacity to understand the nature and extent of his property, his intended beneficiaries and the disposition he intends to make.
2. The person making the Will was unduly influenced at the time the will was written and executed.
3. The Will was not executed according to the required legal formalities.
4. The Will has been revoked.
5. The Will was a forgery.

This all sounds so abstract. Can you give me an example of what someone would think about when planning his estate?

Sure.

In making estate planning decisions, there is no “right” or “wrong” way to divide up an estate. The decisions must be made on the basis of what is important to you and the circumstances of the individuals and organizations you wish to benefit.

For example, let’s assume that Tim is preparing for his retirement and has decided to “get his affairs in order.” He knows that without a Will, his wife Stephanie and his four children will each receive a portion of his estate. Since Stephanie is a wealthy woman in her own right, as the recipient of the estate of her parents, Tim would rather leave his assets to the children. The children are not experienced in dealing with assets, while Stephanie does have significant experience and a good understanding of financial matters.

Tim and Stephanie have four children. The youngest is an adult and has been estranged from the family for many years. Tim makes a Will leaving all of his assets in a single trust for the benefit of his three other children (Tim could also leave the assets in three separate trusts with each child as the primary beneficiary of a separate trust). He names his eldest child as executor of the estate and the second and then third child as the successor executors. Stephanie was named as the trustee of the trust for the three older children. Tim realizes that certain of his assets, his life insurance and his IRA account, will not pass by his Will. He has named his three eldest children as equal beneficiaries of those assets by naming them in separate beneficiary designations. To eliminate any doubt as to his intentions, Tim identifies both Stephanie and his youngest child in the Will and states his intention not to leave anything to them. Tim understands that as his spouse, Stephanie would be entitled to a share of his estate unless there was a marital agreement or valid waiver. In other words, unless your spouse agrees, you may not exclude him or her from sharing in your estate. If you attempt to exclude your spouse, he or she will have to make an affirmative action to claim the share. The rules for doing this are established by each state and may differ considerably. Tim has made his decisions on the basis of need and degree of positive feelings he has for each beneficiary. His exclusion of his wife does not indicate a lack of feeling for her (a fact he may wish to communicate in the Will) but a recognition that she does not need his assets for her security and also that adding more to her estate would increase the share which would ultimately be paid in death taxes. By leaving the funds for the three older children in trust with his wife as trustee, he has provided a structure that will protect the assets from waste, mismanagement and unnecessary litigation. The trust terms also provide Tim’s wife with latitude as to the distribution of the assets as between the children and how and when they will receive them. Thus, Tim has not deprived Stephanie of some say in how the assets are managed and distributed. Although some people would “always leave things equally to the children,” Tim has recognized the estrangement of his youngest child and has made the difficult but perhaps logical decision to leave the assets to the other three children.

All of my assets are held in joint tenancy with right of survivorship or in a manner in which a beneficiary is designated (e.g., life insurance, IRAs).  Do I need a Will?

Yes. It is a good idea to have a Will as a “backup” to guard against any unforseen circumstances.  While the assets you have now will pass to the survivors or beneficiaries without probate, at some time in the future you may acquire additional assets that are titled in another manner. Also, the named joint tenants or beneficiaries might predecease you and you would need a Will to direct where that property will go.