What is a ‘will’?
A Will is a written document, generally prepared with the help of an attorney, that provides instructions for the disposition of a decedent's (dead person's) property. The term “Last Will and Testament” is simply a more complicated name for a Will.
What should I keep in mind when I select the executor of my will?
Who makes sense to choose as an executor is a crucial decision since his or her job can be a thankless one. Fingers start pointing quickly at the executor if things don't go the way family members expect.
Since the executor is bound to carry out the terms of your will and obey the laws of the state, pick someone who is organized and likes numbers. An attorney or accountant are obvious choices, though their services can be taped if there are complex legal, tax, and accounting issues involved. Consider an executor that has a personal interest in your family, is familiar with your affairs (but not have a conflict of interest), has people skills, and the competence and maturity to do the job well.
I want to update my will. How do I go about it?
There are two basic choices, and professional assistance is in order for both.
- You can prepare and properly execute a new Will that revokes the earlier Will, or
- 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.)
The approach that makes sense depends on the specific facts and circumstances. For example, there are sometimes tax provisions that grant a preference to provisions in old Wills, but not new Wills. Or there may be a possible question about your mental competence. In such a case a Codicil would generally make sense.
While Codicils were often used in the past, now lawyers use word processing programs which are able to quickly integrate any changes you want to make -- even minor revisions -- into a new Will that is up to date. The fee for such revisions is typically very modest, and the lawyer can suggest other possible revisions to take account of new statutes, tax regulations and changes in circumstances that you may have overlooked.
MAJOR WARNING. NEVER TRY TO MAKE CHANGES IN A WILL ON YOUR OWN! Writing in the margins, crossing out words, lines, or sections of the original Will invites confusion, potential ambiguity, and likely nasty and protracted Will contests.
What is the effect of senility on a will's validity?
Don’t think that just because the deceased wasn't as sharp as she used to be, or that because he was old and forgetful, it is sufficient to getting a Will thrown out as invalid. The person seeking to have the Will accepted for probate generally has to establish that the deceased was of sound mind and memory at the time the Will was executed. As you might expect, the people who served as witnesses when the Will was signed almost always say the deceased was of sound mind, knew where he was, what the day was, who his family members are, and knew that he was signing his Will. Then the burden often shifts to the person challenging the Will to prove it should not be admitted to probate.
It can be very difficult, and costly to prove that the deceased was mentally incompetent, or made a mistake, or was subject to fraud, coercion, duress, or undue influence when he or she was making the Will.
Can a parent disinherit a child?
Generally Yes. To do so, it is necessary to specifically say in the Will that the omission is intentional. Often Wills have language along these lines: “I have previously taken care of my daughter Susan during my lifetime, and have chosen to leave nothing to her in this Will. Similarly, I am leaving nothing to my son John, for reasons known to both of us.”
If a child is a minor, the states do provide an allowance to support the child until they reach the age of majority, typically age 18.
Can I disinherit my spouse?
Not completely, unless you and your spouse have waived the right to be included in the other's estate in a prenuptial or postnuptial agreement. Each state has laws that shield a surviving spouse from being completely cut off.
In most states, the surviving spouse can choose between the property left in the deceased spouse's Will or a statutory share set by state law (usually one-third or one-half of the estate). Whether it is advantageous to elect the state's share - generous in some states, minor in others - depends on the rules for calculating the elective share, which rules and exceptions have a remarkable number of variations between the states.
What is the effect of a divorce on a will?
It depends on your state's law. In some states, a divorce decree automatically revokes your entire Will and in others, it revokes only those provisions that made gifts to the former spouse, not the Will itself. Either way, any property arrangements in a Will (or other document, such as a life insurance policy, bank account) should always be reexamined when you contemplate a divorce. Frequently, these matters may be required to be addressed as part of any divorce agreement or court decree.
What if there is no will?
If a person dies without a Will (known as dying “intestate"), the probate court appoints a Personal Representative frequently called an “Administrator” or “Administratix” to receive all claims against the estate, pay creditors, and then distribute all remaining property in accordance with the laws of the state.
The major difference between dying testate and dying intestate is that without a valid Will an intestate estate is distributed to beneficiaries in accordance with the distribution plan established by state law; a testate estate is distributed in accordance with the instructions provided by the decedent in his/her Will.
Do we have to go through probate if there is a will? Why can't we just distribute the assets as the will says?
Generally it is necessary to go through probate or, in the case of smaller estates, a less formal procedure that is still under the general supervision of the probate court, before the deceased's property can be legally distributed.
Even if a person dies with a Will (which is known as dying “testate"), a court generally has to have an opportunity to allow others to object to the Will, and if there are any objections, to determine if the Will is valid, because it is always possible that:
- there was a later Will (which, if valid, would replace the older Will), or
- the Will was made at a time the deceased was not mentally competent to make a Will, or
- the Will was the result of fraud, mistake or “undue influence” or
- the Will was not properly “executed", or
- the so-called Will is actually a forgery, or
- for some other reason (such as a pre-existing contract) the Will is not fully valid, or
- there are other claims against the deceased's estate that impact what the beneficiaries under the Will would receive.
For example, if the deceased owned real estate in his own name, no knowledgeable outside person would accept title to the property, and no bank would lend a new buyer mortgage money on it, unless the estate went through probate so “clear title” could be given the new buyer. Similarly, few outsiders would enter into any other transactions involving the deceased's property before the Will is “admitted to probate” and/or someone is lawfully appointed to act for the estate.
What is a ‘pour-over will’?
A pour-over Will is a particular type of Will used in conjunction with a Trust. Most people intentionally don't put all their property into the Trust, sometimes for convenience (such as a car -- some states and insurance companies seem incapable of dealing with vehicles held in a trust) or other times for tax reasons (it may be Subchapter S stock that often does not fit well in a Trust, or real estate and they don't want to risk triggering a property tax re-assessment). Most often people forget to put newly acquired property into a Trust on an on-going basis.
To prevent the creation of an intestate estate, a pour-over Will is created to catch any property which had been (intentionally or inadvertently) left out of the Trust at the time of your death. By the terms of the pour-over Will, the property that it catches is distributed to the existing Trust.
Whenever a Trust is used, it is essential to also have a pour-over Will to catch your property which was not held by the Trust, not held in joint tenancy, or subject to other contractual arrangements at the time of your death.
