What Is A Will?
A Will is a document which provides how a person’s personal property will be distributed after their demise. Each state has certain laws and requirements that must be met. Usually the creator of a Will must be at least 18 years of age. He/she must be of sound mind and free from inappropriate influences. A Will is a written agreement. It is not verbal. It must be signed and witnessed in a special manner in accordance with the law. This document should be written while the maker is free from emotional strain and in good health. It is very important to make a Will if you have a spouse and/or children. Otherwise, in the event of a tragedy the court would appoint the guardian. You may name the person you want to manage your estate when you make the Will during the period of administration. This person is called the Executor. If you do not make a Will, the Probate Court will appoint someone whom you may or may not know to handle your estate. If you do not make a Will the property of the decedent is distributed according to a formula fixed by law. In other words, you and your family would not have any say as to how your property will be distributed.
A Will can be changed as often as the creator wants. Changes can be made by executing a new Will which revokes or replaces the old one or by executing an amendment called a “Codicil”. A certain legal and statutory requirement must be met for the document to be effective. Always consult a lawyer when you desire to change your Will.
A properly drawn and executed Will is effective until it has been changed or has been revoked. Changes after a Will has been created such as tax laws, birth of children, marriage or a substantial change in the amount of a person’s estate, may raise questions as to the adequacy of the Will. Any changes in circumstances require careful analysis and re-consideration of all provisions that were originally created. Another benefit to properly executing a Will is it may reduce or eliminate the amount of taxes that have to be paid. It is necessary that everyone be tax conscious. If there is property to be administered or taxes to be paid the existence of a Will does not increase probate expenses-it often lessens them. A lawyer thoroughly skilled in this area can give you safe advice. The lawyer has to know the law of Wills and property as well as being familiar with both the state and federal inheritance and estate tax problems.
Property held in the names of both husband and wife does not automatically pass to the survivor upon the death of one of them. The documents must be reviewed to see if “survivorship” was mentioned. If survivorship is mentioned then at the passing of one of them, the surviving owner will acquire the decedent’s share. Also note, a married person cannot completely exclude the spouse. If a person passes away without a Will and two or more people own property without a survivorship clause then the ownership interest of the deceased person becomes the property of his/her estate an is state law. There are other restrictions regarding the disposal of property which a lawyer can explain.
Drafting a Will is a delicate operation. It requires professional knowledge which can only be developed through years of study, training and experience. Only a practicing lawyer can help you avoid the many downfalls and advise the course best suited for your personal situation. Any amount of property constitutes an estate. If you own a home or are buying one, you have an estate. Family circumstances and personal feelings are large factors in determining whether your estate warrants the making of a Will.