Tuesday, October 26, 2010

What Is A Will, and Why Do I Need One?

Nobody wants to think about the fact that we will all die someday, but responsible planning includes setting your affairs in order so that your family and loved ones are taken care of if something should happen to you. A Will is simply a document that sets out your instructions for how you want your assets to be distributed after your death. It ensures that your assets are passed on the people you want and provides for orderly distribution of those assets. It may also serve to avoid or eliminate disputes among your beneficiaries. If you should die without a Will, your assets will be distributed according to a statutory scheme, which may not be the same as what you would otherwise choose. Any person of any age, 18 or older, who owns assets, real or personal, should consider establishing a Will.

To be valid, a Will must be in writing and must be witnessed and notarized. The witnesses and notary must verify that the creator of the Will was of sound mind and executed it freely and voluntarily, without any undue influence. A handwritten Will without proper execution will not be validated in most cases. A Will once executed remains valid unless and until revoked by the creator (or, as to a spouse, until a divorce). It may be changed at any time that you wish.

If you have minor children, a Will is also the place where you would designate guardians to take legal custody of your minor children in the event both parents are deceased. (See my blog post dated December 9, 2008 for more on the topic of guardians.)

Not all property passes according to a Will. Only property which you own in your individual name with no beneficiary designation will pass under the Will. Certain assets, such as life insurance and retirement accounts, will pass instead directly to the beneficiaries of those assets. Jointly held property also passes not through the Will but instead to the surviving joint owner. In determining distribution of your assets, therefore, you must consider beneficiary designations and the way you hold title to property as well as the terms of your Will.

Wills may be simple or more complex depending on your particular circumstances. It may be just one of several components in a proper estate plan. Establishing a Will is an important first step in putting all of your financial affairs in order. The assistance of an experienced estate planning attorney is crucial to the successful completion of this task.