Wills
| Author | Jeffrey Wilson |
| Pages | 729-736 |
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A will, sometimes known as a "last will and testament," is a legal document that provides written instructions for the distribution of a decedent's (dead person's) property. Generally, people should consider making a will if they care how their property will be distributed when they die, they want to name the person who will handle financial and legal matters they may leave behind, or they want to name a guardian for their minor children.
A will most likely will include the following provisions:
Your name (the testator)
The name of your spouse and the date of your marriage, if any
The name of your children (and how you wish any foster and stepchildren to be treated), if any
A statement revoking any wills you may have previously made
Your nomination of a personal representative to administer the estate and usually at least one alternate.
A list of powers that you want your personal representative to have (these are often enumerated in your state's statutes
A list of any special gifts
Instructions for distributing the remainder of your estate after your debts, taxes, and ex-
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penses incurred in administering your estate have been paid
A waiver of any surety bond requirements
Your will may not cover everything that you consider "your property." The following types of property are examples of assets that may pass directly to a beneficiary you have named in a separate document:
pension plan assets
401(k) plan assets
life insurance
annuities
property held through a "trust"
These assets would usually pass to beneficiaries you have previously named in documents under the supervision of the manager of the pension plan, the company sponsoring the 401(k), life insurance companies, annuities, and in a trust instrument. However, if you name "my estate" the beneficiary of any of these kinds of assets, then your will would control who receives the property and benefits. Be aware that by doing this your eventual beneficiaries may experience some significant delays and/or some important tax disadvantages.
Your will should be prepared and properly executed (signed by you and a certain number of competent witnesses) while you still have legal capacity. Thus, if you want a will, you should have one prepared and sign it according to the applicable state law while you have full control over your mental functions. If you wait until you suffer an accident or an illness, it could be too late.
When you die, your personal representative (also known as an administrator or executor) will gather and inventory all of your property at the time of your death. Most states require the personal representative to post a surety bond covering his/her actions, although you can explicitly waive this requirement in your will. The personal representative will also determine your outstanding debts, pay your legitimate debts, and distribute the remaining property according to the instructions in your will. Your personal representative will be appointed in a probate proceeding. The personal representative must usher your property through the probate process, subject to your state's probate rules and procedures. In many states, the court maintains tight control over the activities of the personal representative. For example, the personal representative must obtain the court's permission to sell, distribute, or otherwise take action with respect to property in your estate.
It is important to choose someone who you think will be competent and trustworthy to serve as your personal representative. The personal representative will have access to all of your property and the authority to conduct certain business on your behalf. To the extent that you can, it is a good idea to choose a person with some business experience, intelligence, and high integrity. Your will should name the person you wish to nominate as your personal representative. You will probably also name one or more alternates to serve in the event that your first choice for personal representative is unwilling or unable to serve. Because you cannot speak in your own behalf, your will acts as your voice to inform the probate court about who you think will be best suited to this job.
The most common reasons to change your will after it has been executed include the following:
You get married or divorced
Your family increases through the birth or adoption of child
There is a death of a family member or of a beneficiary
There are changes in the Federal Estate Tax laws or State Tax laws that may effect your estate
There is a substantial change in the value of your estate
You change the nature of your property holdings, which impacts your distribution plans.
A potential guardian, executor, or Trustee moves away, dies, or refuses to serve in that capacity.
Your children reach the age of majority, or are old enough to manage financial matters on their own
You move to a different state
You need or want to eliminate gifts to certain people
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To change your will, there are two basic choices, and professional assistance is in order for both. First, you can prepare and properly execute an entire new will that revokes the previous will. Second, you can prepare and properly execute a codicil to the will. A codicil is a separate document that adds to and/or replaces one or more provisions in an existing will. What makes the most sense for you will depend on the facts and circumstances. For example, if there is a new tax provision that favors provisions in existing wills, but not new wills, or there may be a question subsequently raised about your mental competence. In these cases, a codicil would generally be the best choice.
Codicils were used frequently in the past, but lawyers now use computer technologies that can quickly integrate any changes you want to make—even minor ones—into an entirely new will that is up to date. Because of the ease of making the changes, the fees charged to make these modifications are usually modest. Your lawyer may even suggest revisions to your will that take account of new laws, tax rules, and changes in your circumstances that you may have overlooked in your previous will. Regardless of the ease of making these changes, never try to make changes in your will on your own. If you write in the margins, add material, cross out words, lines, or sections of the original will you could possibly create some confusion or ambiguity and thereby invite unpleasant and protracted will contests.
Someone trying to have your will accepted for probate generally must establish that you were of sound mind and memory at the time you executed your will. Even if one becomes old, frail, and forgetful, it is difficult to get a court to regard a will as invalid. Generally, those who witnessed the will being signed will almost always say that the deceased was of sound mind, was aware of his surroundings, the day or date, who his family members were, and knew that he was signing a will. The burden then shifts to the person challenging the will to prove it should not be accepted for probate.
Courts maintain a strong presumption that a will is valid. Thus, it can be costly and difficult to prove that someone was mentally incompetent, made a mistake, or was subject to fraud, coercion, duress, or undue influence when making and/or executing the...
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