A last will and testament provides instructions for the distribution of your estate. It probably comes as no surprise that more than 70 percent of Americans don’t have one. Most people aren’t eager to draft legal documents, and there’s a natural reluctance to confront death. But working on a will is a lot easier than you’d think. And the peace of mind — especially for parents with young children — is well worth the time.
A last will and testament ensures that your wishes are honored regarding who receives your property and who raises your young children. You’ll also be minimizing the burden on loved ones of dealing with your possessions after your death. Without a last will and testament, critical decisions will be made for you.
It’s important to remember that a will doesn’t change the title to your property, but it is an instruction of your wishes to your personal representative — the executor — and to the probate court where your will is admitted. Probate court is the legal system through which your debts are settled and any remaining property is distributed to your heirs.
The executor is charged with carrying out the testator’s (your) instructions. The law recognizes this personal representative as a fiduciary who is required to exercise prudent business judgment. In large estates, he or she may be required to post a bond to ensure fulfillment of duties and be paid for the work. Usually, adult children serving as executors of modest estates don’t charge the estate for their services.
Naming guardians for minor children in the event of your death helps assure you that someone you trust will take over your parental responsibilities. Parents take great care in choosing a guardian. Failure to author a will could result in a court appointing someone whom you might not trust to be guardian of your children.
This is why it is absolutely essential that you keep an up-to-date last will and testament — to have a say in who raises your children in your absence. Not the courts. Not state law. If you want your children raised in a certain place, with people who share your values, you need to indicate this in your will. You simply can’t assume the courts will place your children with the guardian of your choice. Keeping your will updated, ideally after the birth of each new child, will help prevent ugly custody battles among family members.
You may think that you don’t have enough property to warrant writing a will, but if you own anything of value — sentimental, symbolic or otherwise — you should list it in a will. This is your opportunity to show your loved ones you care and are thinking about them. If you happen to own property of significant monetary value, indicating how it should be divided will reduce the possibility of confusion or family conflict.
Don’t assume the people closest to you will automatically care for your pets in your absence. Without specifically naming a pet guardian in your will or setting aside funds for your pet’s care, Miss Honey or Mr. Jasper may face an uncertain future. Animal shelters are crowded with pets orphaned by their caring but unprepared owners.
If you don’t have a will, the courts will appoint an administrator to settle your affairs, which can drain up to 10 percent of your estate’s value. It also means your property will be tied up much longer — up to three years. For dependents, this can be an extremely long and difficult wait, and potentially a financial burden if there are no allocated funds to pay for funeral costs and other expenses.
One of the great things about a last will and testament is that you can outline specific wishes for your funeral. Prefer jazz to organ music? Specify it in your will. Don’t like pink carnations? Indicate what kinds of flowers you’d like displayed at your funeral. Don’t want to be buried in a cemetery? Leave detailed instructions for cremation or a burial at sea. You have the final word. The testament portion of your last will and testament lets you say what’s on your mind — for all eternity.
One of the best ways to support a good cause is to donate to it in your will. It’s a great way to leave a lasting, positive impact on the world.
Most parents will divide their estate equally among their children. But sometimes it’s appropriate to provide for unequal distributions: parents often recognize that some children have greater needs than others. Sometimes, adult children have proven themselves unreliable and unsuitable for the receipt of a large amount of money. And sometimes the distribution can come with strings attached, such as beginning treatment for alcohol or drug abuse.
Most wills must be in writing, signed by the person making the will, with two witnesses to sign a statement acknowledging the signature of the person making the will. This is notarized with both witnesses and the person making the will signing it in the notary public’s presence. The witnesses should not be beneficiaries of the will.
If you don’t have a will, or have one but think it might need updating, give us a call and we’ll be pleased to help you.