A will is a legal document that generally outlines how you wish for your property or assets to be distributed upon your passing by listing the property you own and to whom you want it to pass. The recipients of your property are the beneficiaries. Wills are probated or court administered, though many are summarily handled if the assets are valued below a certain amount. Congress passed the Uniform Probate Code (UPC) so that state laws would be uniform regarding how a will is constructed and validated and so that individuals would not have to worry about how a particular state’s laws affected a will. However, only a few states have adopted it though may of their own laws are similar to or based upon the UPC’s provisions.
Many individuals prepare their own will by using a template or by copying someone else’s will and changing some of the provisions, property descriptions and names of the executors and beneficiaries. Unfortunately, not all self-made wills are valid. Many contain invalid provisions, were not properly executed, and result in will contests that can drain the estate’s funds and those of the disputing parties. In other cases, decedents who died without a will have their property pass according to that states’ intestacy succession laws. However, if an attorney who provides will services–usually one who practices trusts and estates law–drafts one for you, then your concerns about validity, execution, and distribution of property according to your intent should be put at ease.
What Happens if You Pass Without a Will?
Should you pass without a will, then you are considered intestate. Any assets or debt obligations remaining will have to be court administered. An executor will be appointed by the court and the property will pass according to your state’s intestate succession laws. In most cases, your assets will pass to your surviving spouse and children according to the state law or whomever is next in succession. This may not be in accordance with your wishes.
How a Lawyer Can Help
Though most wills are fairly basic, it is recommended that you consult with an attorney if you have a business, real estate, considerable personal property or wish to leave certain items to certain entities or individuals. You also have to consider the tax implications involved. An attorney providing will services can advise you on the following issues that may arise in a will or will contest:
- You have children from a previous marriage
- How a trust set up in a will can have property easily pass to its named beneficiaries
- You have a special needs child and wish to establish a long term care plan for them without jeopardizing their receipt of Medicare and other benefits
- Spousal rights if you wish to disinherit your spouse
- Drafting a provision for your own long term medical care and for a named conservator to make your important decisions regarding your health and finances if you become incapacitated
- Your fear that family members will contest your will based on fraud, duress or undue influence
- You concern about your interest in a business and how it will pass to your heirs
- You desire to leave some of your assets to a charity
- Your doubts about your ownership interest in a property that another person or entity has an ownership interest
Other issues concern your mental capacity and if family members will assert you lacked the requisite mental capacity to enter into a will. These issues arise if the decedent was very old, had symptoms of dementia or a person who had a close relationship with the decedent mysteriously emerges as the chief or sole beneficiary of the assets of a large estate. An attorney can help with having supporting medical reports or records supporting your capacity at the time the will is drafted.
If you wish to leave a family member out of the will or for that person to receive a smaller share than others, a will can have a provision containing an explanation of your wishes in this regard. In any case where such issues may arise, detailed notes by an attorney regarding the circumstances of the will drafting can be evidence of your intent.
A will is one aspect of your overall estate planning strategy. An attorney will discuss with you how probate works, how it can be avoided in many instances with the creation of trusts and other financial instruments, life insurance or certain accounts, and how to minimize the tax implications whenever funds or large items of property change hands.