What is a Last Will?
A last will (often referred to as a will or last will and testament) is a legal document that dictates how a person’s assets will be distributed. A person must be at least eighteen years of age in order to create a will, and the will must be in writing. The testator (the person who creates the will), must sign the document in the presence of at least two witnesses aged eighteen or older. A handwritten will creates complications and expenses; a typed will is always preferable. Any adjustments, or codicils, to the will must be made in the presence of at least two witnesses, and in the event of significant changes, one should draw up an entirely new will.
A will identifies an executor (the person who will carry out the wishes of the testator), and names any beneficiaries, trustees, and/or guardians. A will can include any special instructions or unique wishes of the testator.
Is a Last Will Necessary?
In the event that a person dies without a will, the assets of that person will be distributed under the state’s laws of intestacy.
Laws of intestacy are not always as clear and simple as one might think; for example, under New Jersey law, a person’s estate will go directly to his or her spouse only under certain conditions. The surviving spouse will not receive the entirety of the estate if the decedent and the spouse had children, if the decedent has a surviving parent, or if the decedent had children from a previous marriage.
In order to ensure that one’s assets go exactly where one wants them to go (to whom you want, when you want, and how you want), one must draw up a will. A will can help speed up the process of transferring assets and prevent tax burdens, and does the important business of naming an executor and, even more significantly, guardians for one’s children. This preparation can ultimately assist in removing pain and stress from loved ones during an emotional time.
The Importance of Choosing an Executor
Choosing an Executor is one of the most important decisions you will make when finalizing a Will. The Executor manages your Estate after your death, paying any debts, marshaling assets, liquidating certain assets and then distributing assets to beneficiaries. Your choice for an Executor should be someone who is trustworthy, responsible, and capable of handling the responsibilities and investing the time necessary to carry out the duties of an Executor.
The Executor can be a family member, friend, or a professional, such as a lawyer or accountant. You should discuss the decision with the chosen Executor beforehand to make sure they are willing and able to take on the responsibility.
Updating Your Will
Life is unpredictable and circumstances can change. Periodic reviews of the terms of your Will are important. Eventually, most people need to update their Will to ensure that it still reflects the testator’s wishes and current circumstances. Major life events such as marriage, divorce, the birth of a child, or the acquisition of new assets can all warrant a review of your Will.
Once your Will is done, you should review it every three to five years and after any major life events. While it may be tempting to pencil in changes or prepare your own amendment or codicil, you should avoid doing so. The criteria for accepting a Will into probate are fairly strict, and if you don’t comply with the rules put in place to ensure authenticity, you could be creating unnecessary expense when it comes time to probate the Will. You may also open the door to claims or litigation. Any updates or changes to the Will, or to a Trust, should be done by an attorney.
Should You Try to Avoid Probate?
Probate is the legal process put in place by law to make sure that your Estate assets are administered properly and delivered to the beneficiaries entitled to them. While it is “public”, in that the Will you submit to the Surrogate’s Office could be the subject of a public records request, this rarely happens. To avoid probate, you would need to have all your assets placed into a trust. This means every account, stock, piece of real estate and any other assets need to be transferred or titled in the name of the trust. Few people do this successfully. Even if you create a trust, you still need something called a pour-over will which ensures that any assets that were not titled in the name of the trust are administered as part of the trust. The pour-over Will simply directs that any assets you still own in your own name rather than in the name of your trust transfer to the trust upon your death. There are other reasons that a Will remains a necessity. If your death results in a legal action being filed, the Executor named in your Will would be the person to bring those claims on behalf of your estate.
Often times, clients with substantial assets create a trust and appoint a trustee to manage the assets during their life. When they die, the Trustee is already in place and can continue to manage the assets and follow the directives set forth in the trust when it comes to beneficiary distributions.
Another easy way to make assets available immediately at the time of your death is to place assets into a joint account with someone you trust. You can also name individuals to be paid upon your death directly from a checking account. An attorney can provide guidance on the best options for avoiding probate based on an individual’s circumstances.
A Will can also include provisions for charitable giving. This can be a way for individuals to leave a legacy and support causes they care about. There are many ways to include charitable giving in a Will, such as leaving a specific amount or percentage of assets to a charity, or setting up a charitable trust.
It is important to discuss charitable giving with an attorney to ensure that the provisions comply with state laws and achieve the testator’s intended purpose.
Don’t Do-It-Yourself: Call Byrnes, O’Hern & Heugle
Some may be tempted to save money by creating a will with the help of a website or computer software. This is not the safest way to create a will, because most softwares and sites are not created with the specifications of different states’ laws and cannot take into account an individual’s personal and family circumstances. Furthermore, the general language used by most of these softwares and websites may or may not be valid.
State laws can change. It is important to have an attorney review one’s will every three years to make sure that it is up-to-date.
Professional guidance from knowledgeable experts like our attorneys at Byrnes, O’Hern & Heugle will ensure that your will reflects your wishes and complies with current laws.
Contact us to begin the process of protecting your assets and easing your family’s burden.