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More Information on Wills

Wills

A Last Will and Testament is one of the important documents of a good estate plan. A will is a document that all adults should have regardless of age. A will is a legal document which is witnessed by two disinterested parties and directs the distribution of your assets after your death. The execution of a valid Will assures you that your assets will be distributed to your loved ones in accordance with your wishes and you will also designate an Executor who will oversee the administration of your estate.

If you have no Will at your death then the state will decide who will receive your assets. This may or may not be consistent with your true wishes. Under state law it is possible that you could have substantial assets going to a relative for whom you have little affection or regard. Additionally, the Court will also decide for you which of your heirs should administer the estate. Again this may not be the person you would choose to handle your affairs.

A Will is a very technical document and should only be prepared by a qualified attorney. Errors can result in the Will being disallowed and your wishes therefore ignored

There are several issues that must be considered by you and a qualified attorney when preparing this document including the following:

  • Are there specific items that you wish to give to one or more individuals
  • To Whom do you want the remainder of your assets to be distributed to and how should it be divided? (i.e. equally or by percentage)
  • If any of the primary beneficiaries should predecease you how should their shares be divided?
  • Are there any individuals who you wish to be beneficiaries who might be disabled?
  • Who should be in charge of your estate and also who would be a back up in case your primary executor predeceases you?
  • If you have minor children, who should be named their guardian in your absence and how should you make sure they will be taken care of financially.

There is a major misconception that only older individuals need to worry about having a will, however, if you are a younger individual and have minor children then it is important to have a will to designate a guardian. This is extremely important as all families are different and if there is no will or the will does not name a guardian then a proceeding is required in the court and the court will decide who would be an appropriate guardian for your child. By not preparing for this the outcome could be much different then you might have wanted.

A second item that should be included in a will executed by a younger individual with minor children is the distribution of your assets to these children if minors at the time of your death. In an effective will, the distribution of assets is usually to a testamentary trust for the benefit of your child or children. The will designates an individual who will be the trustee of the trust and will be in charge of making financial decisions on behalf of your children. Most trusts give discretionary powers such that the trustee can decide when money should be given to the minor depending on the situation at the time. At some point, usually around 25 years of age the trust will end and the remainder will be distributed to the children. If you do not have a will that addresses these issues, then the court will decide these for you.

These are just some of the issues that should be considered when meeting with a qualified elder law attorney. All families and circumstances are different and should be considered on an individual basis.