The Importance of Writing a Will

Some people believe if they don't have many assets, or if they're married or parents, they don't need a will. The truth is, almost everyone needs a will to stave off unforeseen circumstances and expenses.

A will is a legal paper that describes who receives your probate property after your death.  A will is typically prepared by a lawyer, and is signed by you in front of at least two appropriate witnesses and a notary public.  You should be at least 18 years old and of sound mind to sign your will.  A will directs how your probate property will be distributed upon your death.  Your probate property does not normally include property owned in joint tenancy with right of
survivorship, nor “payable on death” accounts with banks and other financial institutions, nor life insurance proceeds.  Property owned in joint tenancy with right of survivorship, and “payable on death” accounts, normally passes outside of probate at your death to the surviving joint tenants and payable on death beneficiaries.  Life insurance proceeds normally pass outside of probate at your death, and are distributed to the beneficiaries listed in the life insurance policy.  Property owned by a trust normally passes outside of probate at your death, and is handled by the trustee.

Some people think that they don’t need a will if their property is owned in joint tenancy with right of survivorship, or owned in “payable on death” accounts.  However, you should also have a will in case the joint tenancy property or payable on death accounts are later determined to be improperly titled, and therefore subject to probate.

If you have a properly drafted will, you can give your probate property to the persons and in the amounts that you choose.  However, there are some restrictions.  Your spouse may ask the probate court for more of your probate property, if your will has directed that less of your probate property be distributed to the spouse than the law provides for.  In some states you may not exclude your spouse from your will without his or her consent.

If you don’t have a will, your probate property may be distributed according to your state’s laws of intestate succession.  Those laws may direct that your probate property be distributed to certain close relatives and sometimes to more distant relatives.  The specific relatives and the percentage of your probate property that goes to each relative, may not be the same as you would choose if you had a will.  If no relatives are found, which does not happen often, then your probate property may go to the state. 

A will can direct that some of your probate property be distributed to your favorite charity.  A will can name an executor to handle your probate property after your death.  The probate court usually appoints the executor that you requested, unless there is some compelling reason not to do so.

A will may save some of the costs of processing your probate property through the probate court.  You may save some money if the will says that you are waiving the court’s usual requirement that the executor of your probate estate post a bond.  You may also save some money if the will says that you are asking for independent administration of the probate property.  This independent administration reduces, but does not eliminate, the amount of court paperwork and expense for the executor and the probate estate attorney.  Your will may also specify a guardian for your minor children.  If your will includes a testamentary trust including estate tax planning, you may save on death taxes.

If you have a will, you can change it.  When you want to make a change to your will, you should contact your lawyer.  Your lawyer can prepare an amendment to the will called a codicil.  Some wills have been amended many times.  If the amendments are too extensive or too numerous,
your lawyer may recommend that you prepare a newer will, and destroy the old will.  You should consult with your lawyer about whether changes to your will are necessary if you have a new marriage, divorce, or a death in your immediate family.  You should consult with your lawyer if your probate property and assets change, or if you move to another state.
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