A will is a legal document that can serve as the primary document that directs how to distribute your estate, nominates an executor to manage the estate, and names a guardian for minor children. It can also serve as a backup device if any other estate planning device you have fails for whatever reason. Everyone must have a will, regardless of any other estate planning device they have created.
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What Is a Will?
Simply put, a will is a legally binding document containing your directives on distributing your estate upon your death. The person making the will is the testator or will maker. The executor or personal representative is the person nominated to administer the will. A successor or alternate executor administers the will if the original executor is unable or unwilling to do so. A beneficiary is a person who receives a gift in a will. An heir is someone who stands to inherit from a deceased person’s estate but may or may not be a beneficiary in the will. The specific formalities of preparing and signing a will vary by state law.
Generally, property left in a will must go through probate. Probate is a court process where the court appoints the executor, directs debt payments, directs an accounting, and eventually directs the executor to distribute the property to the beneficiaries. It is a costly and lengthy process that most people prefer to avoid. Regardless, it is worth repeating that everyone should have a will, at least as a backup to any other estate planning device you have.
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What Does a Will Contain?
Generally, the simple will first identify the testator by full name, the testator’s county and state of residence, and a statement revoking any prior wills. The will then directs the executor to pay costs of estate administration, legitimate bills, such as credit cards and medical bills, and any taxes of the estate or testator.
The will also has provisions to:
- Nominate an executor and any successor executor
- Nominate a guardian for any minor children or dependents
- Create a testamentary children’s trust (a trust created by a will) for any minor children
- Describe any specific items and gifts to certain people or charities
- Name beneficiaries
- Direct the specific distribution of personal property and mementos, which can be the most important things to a beneficiary
- Direct the management of social media accounts and other digital asset management
- Disinherit a child
- Disinherit a spouse where the spouse has waived inheritance
Some formalities must be followed to create a valid will. These requirements vary by state but generally require that the:
- Testator be 18 years old
- Testator be of sound mind
- Will is in typed format and printed
- Testator specifically directs the disposition of property upon death
- Testator nominates an executor
- Testator dates and signs the will in front of two witnesses
- Two witnesses are 18 years old and understand that the testator is signing a will
Some states allow witnesses to execute a self-proving affidavit, which is an affidavit signed by the witnesses and notarized by a notary public. This affidavit becomes part of the will to provide additional evidence of the validity of the testator’s signature and soundness of mind.
If you make a change to a will (codicil), these same formalities apply.
Other Types of Wills
There are other kinds of wills worth a brief mention here:
1. Holographic Will
A holographic will is a will in the will maker’s handwriting. The holographic will is legal in some states. While the will maker must write, date, and sign a holographic will, there is no requirement to have witnesses to the signature. Holographic wills often come into play in emergencies where the will maker is in an urgent end-of-life situation. As you can imagine, holographic wills are frequently subject to challenge in court because they are not prepared with any of the formalities normally required for a legal will.
2. Pour-Over Will
A pour-over will is used with a living trust. The pour-over will directs the executor to take any probate property and put it in the trust. The general purpose of the pour-over will is to catch any property that was supposed to be placed in the trust, but for whatever reason, was not.
Parents with special needs children should consider long-term care and the interplay of government benefits, even for adult children with special needs. For this reason, parents create a special needs trust and a pour-over will to take care of these children upon their death. If you have children with special needs, it is important to obtain legal advice from an experienced estate planning attorney.
3. Electronic Will
An electronic will is a will that you can create electronically, sign in front of online witnesses, and store electronically. It is also known as a digital will. This is an emerging area of law that some states are embracing.
What Property Does Not Transfer by Will?
There is property that passes outside of the provisions of the will. This means the property passes on its own terms, irrespective of will provisions. Examples of property that does not transfer by will include:
- Property in a living trust
- Property in joint tenancy with a right of survivorship
- Pay-on-death bank account
- Investment account with a beneficiary designation
- Retirement account with a beneficiary designation
- Real property transferable to a beneficiary by a transfer-on-death deed
- Vehicles transferable to a beneficiary by a transfer-on-death designation
- Life insurance policy with a beneficiary designation
Note that there are situations where these beneficiary designations do not work, so the property must pass through the terms of a will by a probate court. If a beneficiary of a bank account, retirement account, investment account, life insurance policy, real property, or vehicle transfer device does not survive the account holder and there is no other beneficiary, the probate court distributes that asset according to the will’s terms.
The message here is that if you do not have multiple beneficiaries or a successor beneficiary on any asset, it could be subject to probate. It is also imperative to have a will in place for backup.
Why Does a Will Go Through Probate?
1. Property Is in Testator’s Name Only
Many wills must go through the probate process. The primary reason a will is subject to probate is that the testator has property in the testator’s name alone. The probate court distributes the property following the instructions in the will. As referenced above, if the testator was single and owned a bank account in the testator’s name alone, the probate court will need to distribute these proceeds based on the terms of the testator’s will.
2. Beneficiary Dies Before Testator
Another reason for probate is when a beneficiary under a pay-on-death designation for a bank account does not survive the testator. Taking the example above, if the testator was single and executed a pay-on-death designation on his bank account that directed the transfer of the bank account to a named beneficiary upon the testator’s death, the testator may believe that the bank account will transfer without going through probate. However, if the beneficiary dies before the testator and no successor beneficiary is named, the bank account goes into the probate estate. A pay-on-death designation does not allow for an alternate beneficiary. However, the testator could have named multiple beneficiaries, and the surviving beneficiaries would split the bank account proceeds equally.
Suppose this same testator had a life insurance policy, unlike a bank account. In that case, the testator can nominate an alternate or successor beneficiary, so if the primary beneficiary does not survive the testator, the alternate beneficiary will receive the proceeds of the life insurance without the need for probate. Alternate beneficiaries can be used with retirement accounts and investment accounts. For real estate, the maker can nominate backup beneficiaries on the transfer-on-death deed.
3. No Will
In each of the above situations, if there is no will in place to serve as a backup and the deceased dies without a will (intestate), the probate court must apply the intestacy statutes and distribute the assets accordingly. Unfortunately, how the probate court distributes the property may not be according to the decedent’s wishes.
4. Will Challenge
Another reason for probate is if a beneficiary or heir contests the will for any variety of reasons:
- Contesting the sound mind of the testator
- Improper execution of the will
- Alleged undue influence of testator
- Invalid will
Again, the message here is clear, regardless of what other methods or devices are in place for estate planning, a will is a necessary tool to use as a primary device to transfer assets upon death or as a backup device if something fails.
Create Your Will
There is no time like the present to get your estate planning done. Trust & Will’s DIY estate planning tools are state-specific and will guide you through creating your last will and testament, financial power of attorney, and health care directive and living will. When you complete your own will and other documents, you can have peace of mind that you have adequately provided for your family members and loved ones upon your death.