Many people are familiar with Wills or have, at least, heard of Wills. For some, though, their basic understanding of what a Will is and how it works comes primarily from television and/or movies. While often entertaining, relying on television and movies is, typically, not the best source for understanding Wills and how Wills work. Thus, regardless of whether you are familiar with Wills, or perhaps, already have one, understanding what a Will is, and how it works, is important.
A “Will,” quite simply, is a legal document in which a person (known as the “testator”) designates to whom his/her property should be distributed upon his/her death, and who the testator would like to serve as the executor to administer his/her estate. In addition, a Will may be used to nominate the person that the testator would like the court to appoint to serve as the legal guardian of his/her minor children, should there be no surviving parent. A Will does not take effect until the testator’s death. During the testator’s lifetime, assuming the he/she has testamentary capacity, the testator may change, revoke, and/or create a new Will. For a Will to be valid, there are certain formal, legal requirements that must be met.
When utilizing a Will, it is also very important to understand what a Will does not control. Specifically, a Will does not govern the transfer of non-probate property/assets. Certain assets pass directly to others, upon the testator’s death by the operation of law (title) or contract (such as a beneficiary designation), rather than to (or through) the testator’s probate estate. For example, real estate and other assets (such as a bank account) that are owned in joint tenancy with rights of survivorship will pass automatically to the surviving joint owner, and will not be governed by the dispositive provisions of the testator’s Will. The same is true for assets, such as insurance policies and retirement benefits, that are payable to a named beneficiary.
Wills can be drafted to achieve a variety of family goals, as well as tax objectives. The goals and objectives of the testator’s estate plan, will dictate the complexity of the Will. For some, a simple Will is going to be sufficient, and for others a more complex Will (such as a Will that creates one or more testamentary trusts) or a Will that pours over into an inter vivos (lifetime trust) will be required. Our attorneys are committed to helping clients fully evaluate their estate planning goals and to create a Will that aligns with their respective goals.
For more information regarding Wills and estate planning, please contact the Elder Law Center, P.C. division of our law firm.