Frequently Asked Questions About Wills
QUESTION: WHO SHOULD HAVE A WILL?
Here are a few of the reasons why everyone should have a Will:
- You can direct how you want your property divided after your death.
- You may name the person you want to handle your estate.
- You can decrease the expenses of administering your estate.
- You can save taxes, especially if you have a relatively large estate.
- You may establish a trust for the support and education of your minor children without the necessity of court proceedings.
- You may appoint a guardian for your minor children.
WHO MAY MAKE A WILL?
Individuals must be 18 years of age or older to make a Will. They must also be of sound mind and free of any improper or undue influence by another person when they make the Will.
ARE SPECIAL FORMALITIES REQUIRED TO MAKE A VALID WILL?
Yes. A Last Will and Testament is a special type of legal document and it must be prepared and executed in a particular way with special formalities as required by state law.
WHEN SHOULD A WILL BE CHANGED?
A properly made Will remains valid unless the Will is revoked before death. However, all or part of a Will may be rendered inoperative due to changes that occur which affect the Will, for example, if you move to a new state, marry, divorce, have a child, acquire substantial property, or suffer the loss of a loved one. Changes in the law, particularly tax laws, may also require a Will revision. Read your Will at least once every few years to consider changes. A person may change a Will as often as desired. You can make changes by having a new Will prepared or by preparing an amendment to your existing Will, called a Codicil. A new Will is best if there are many changes. A Codicil may be appropriate for a small change. In any event, a new Will or a Codicil must be made with the same formalities as your original Will; crossing out provisions or writing or typing inserts might completely invalidate your Will.
WHAT HAPPENS IF YOU DON'T MAKE A WILL?
With the exception of certain life insurance and property held in joint ownership, your property is distributed under a plan provided by law. This may not be in accordance with your wishes. Without a Will, you lose the opportunity to select a guardian for your minor children and an executor for your estate. Court- appointed administrators and guardians may not be the family member or friend that you would have chosen to handle your affairs. Dying without a Will can be costly and may complicate and delay the transfer of your property to your heirs. For example, your estate may have to pay bond premiums if there is no Will stating that you don't require executors and guardians to post a bond. If a Will is made, these problems and the additional expenses can be avoided.
IS LIFE INSURANCE OR JOINT OWNERSHIP OF PROPERTY A SUBSTITUTE FOR A WILL?
No. Life insurance is only one kind of property that a person may own at the time of death. If a life insurance policy is payable to an individual, the Will of the insured has no effect on the proceeds. If the policy is payable to the estate of the insured, the proceeds may be directed by a Will. Neither is joint ownership an adequate substitute for a Will. There are tax hazards, legal complications, and added expenses involved in joint ownership, many of which can be avoided by a Will. It is also highly unlikely that you can avoid probate through joint ownership, because any part of your property which is not in joint ownership will have to be probated. Also, joint ownership is totally ineffective once the surviving owner dies.