Most people know that a Will lets them determine how their property will
be disposed of after death. Despite this significant benefit, approximately 3
out of 4 adults do not have a Will.
Benefits Of A WillThere are many reasons why you should have a Will.
They include:
- Determine how your property will be distributed when you die. A Will lets
you name your beneficiaries. These are the people whom you want to receive
your property when you die. If you die without a Will, your property will be
distributed according to state law. Generally, the property is given to your
immediate family. If there is no immediate family, other relatives become
entitled to receive the property. The property may not be distributed the way
you want, since it is distributed without considering the needs or
circumstances of recipients.
- Name an executor. A Will can also name an executor. The executor will
oversee your estate s financial affairs during the probate process, including
making sure your debts are paid and that your property is distributed in
accordance with the instructions stated in your Will. Without a Will, the law
designates someone to do that job. The person chosen may not be the person you
would want to serve in this capacity.
- Set up a trust. A Will can also set up a trust, which can help protect
assets and save taxes. Thus, for people with substantial assets (like a home),
a Will can be a cost saving tool.
- Name a guardian. For married couples who have minor children, Wills are
essential. Each spouse should have a Will in order to select a guardian for
the children in case both parents die while the children are still minors.
Although the guardian usually is chosen by the court, the court normally picks
the person recommended unless there is a compelling reason to choose someone
else.
Making Your WillOnce you decide you want a Will, you must then make
one. Most people have chosen to have a typed written Will. A written Will must
be signed by the creator and witnessed by at least two persons. The number of
required witnesses differs by law in different states. Rules for making a
written Will are technical, so you should seek a lawyer s help in preparing one.
Not following the proper procedures could invalidate the Will.
Another
type of Will is a "holographic Will." This is a Will that is handwritten all in
your own writing. Though this kind of Will can seem easier to make than a typed
written Will, it also has special rules for making it. Also, some states do not
allow holographic Wills. Thus, it is best to get a lawyer s help if you are
interested in creating a holographic Will.
A few states still allow oral
Wills. However, they do so only in very limited circumstances and if certain
requirements have been met.
Changing Your WillWills get older like the people who make them. As
your life changes, your Will may need updating. Thus, it is a good idea to
review your Will periodically to see if it needs to be revised.
In
addition to re-examining your Will regularly, some major events can make it
especially important to review, and possibly update, your Will. If someone you
left money to marries a wealthy person, he or she may not need the amount you
originally stipulated. Other important events include:
- Getting married. You will probably want to change your Will to state your
intent regarding your new spouse.
- Getting divorced. You may find it appropriate to change provisions
regarding your former spouse.
- Birth or adoption of a child. You will likely want to include an
inheritance for your new child and also name a guardian for him or her.
- Death of a beneficiary under your Will. You may want to revise your Will
to state a new intention for that gift.
- Death of the person named as executor. Your Will should be revised to name
a replacement. Likewise, if the person named as guardian for your minor
children dies, a new guardian should be named.
- Moving to another state. The laws that apply in your new home may differ
from laws where you lived when your Will was made.
- Major changes in your financial condition. You may want to reconsider how
you allocate your estate. New beneficiaries can be added, or you can change
the amounts left to current beneficiaries.
- If your desires change about whom you want to receive your property.
- Changes in tax or estate laws. Changes in laws may impact the taxes on
your estate. A lawyer can help you revise your Will when this may lessen the
impact of new taxes or maximize the benefits of other changes.
There
are specific legal procedures for changing a Will. Thus, if you want to make a
change, do not simply cross out the part you want to delete and write in
changes. The changes may not be honored, and you could even void the entire
Will.
To make a valid change to your Will, you must properly make a new
Will or add a "codicil." A codicil is a special kind of an amendment to your
Will. It is commonly used when there are just a few changes. If there are many
changes, it may be advisable to write an entirely new Will.
When To Make A WillIf you do not already have a Will, it is best to
make one as soon as possible. The only requirements for making a Will are that
you are at least a certain age (18 in most states) and that you are "legally
competent." However you must follow certain formalities in order to be
effective.
ConclusionWills provide tremendous estate planning benefits. They give
you the peace of mind knowing that your property will be distributed the way you
want, that the person serving as executor is your choice, and that your children
will be raised by the person you want (if you and you spouse die while they are
minors).
Seek legal assistance in making or changing your Will. Laws for
making and changing wills are specific, and you Will want to be sure everything
is done right. Have your Will reviewed periodically by your lawyer to make sure
it is up-to-date.
This article is published for the clients and friends of this firm. It
provides general information. Due to complexities and constant changes in the
law, exceptions to general principles of law, and variations of state laws, one
should seek professional legal advice before acting on any matter.
The Bronsther
Law Firm, P.C.
930 Route 146 Clifton Park, New York 12065
(518)
373-9000
PRACTICE AREAS
Real Estate. Bankruptcy. Elder Law
Estate
Planning & Administration
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