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Will - Living Will

What is a Will?

A will is a legal document. It allows you to choose who receives your belongings and assets after you die. The recipients of your property are called your beneficiaries. A will can also be used to nominate a guardian to care for and raise your minor children as well as a custodian to manage their property and finances. Creating a will also allows you to choose a person to manage the distribution of your assets. This person is called an executor or personal representative.

Why should you make a Will?

A major reason to create a will is that all of your property will be distributed as you wish, rather than according to the laws of your state. Creating a will is your opportunity to make your intentions clear, and to keep important decisions in your hands. Every adult who has property, whether it's a home, a rocking chair or a priceless art collection, should make out a will. And every parent with a child under the age of 18 (or 21 in some states) should name a guardian for that child in his or her will.

What can a Will do?

A will can accomplish the following:

  • 1) Leave real and personal property to a spouse, children, grandchildren, other relatives, friends, favorite charities or anyone else you choose;
  • 2) Provide alternate beneficiaries if someone named in the will predeceases you;
  • 3) Revoke all prior wills;
  • 4) Forgive debts owed to you;
  • 5) Nominate a guardian for minor children;
  • 6) Nominate a custodian for minor beneficiaries;
  • 7) Choose a method for leaving property to minor children;
  • 8) Appoint an executor (or personal representative), the person who will carry out your wishes and administer your estate; and
  • 9) Disinherit a relative who might otherwise be entitled to inheritance under the law.

What may happen if there is no Will?

Each state has laws of "intestate succession" which provide for the transfer of property to relatives if a person dies without a will. The law determines who will receive your property, and how much each person will receive. The court will not take into account what you may have wanted.

If you have no relatives, then the property may go to the government. If you did not express your wishes in a will, the Court does not know what you want, and therefore must follow the mandates of the law in distributing your property. Your friends, favorite charities and some family members, who otherwise might have been remembered with a bequest (a gift) in your will, may have no standing with regard to the intestate succession laws, and may receive nothing when you die.

Property you may not be able to leave by a Will

A will generally does not affect certain kinds of property that you've legally bound yourself to transfer by other means. The following are some examples:

  • Property held in joint tenancy, which will automatically belong to the surviving joint tenants at your death.
  • Property you've transferred to living trust.
  • Proceeds of a life insurance policy for which you've already named a beneficiary for the policy.
  • Money in a pension plan or in an individual retirement account such as an IRA, 401(k), or profit-sharing plan, or any other retirement plan for which you've name a beneficiary.
  • Money in a pay-on-death (POD) bank account or stocks held in a transfer-on-death (TOD) account, for which you have named a beneficiary to receive whatever is in that account when you die.
  • Real property for which you've recorded a transfer-on-death deed (o beneficiary deed) in which you've named a beneficiary to receive the real property when you die.

Probate

Probate is the court supervised distribution of your assets that usually involves...

  • Filing a deceased person's will with the local probate court
  • Taking an inventory/getting appraisals
  • Publishing notices
  • Paying all legal debts
  • Distributing the remaining assets and property to the rightful heirs

Depending upon the size and complexity of the estate, probate can take from a little to a great deal of time. The cost can be relatively inexpensive or considerable. To avoid probate entirely for designated parts of or all of your estate, you may wish to consider a revocable living trust. For The People can prepare your living trust.

Disinheritance

You can disinherit anyone you want to, except for your spouse in many states. Also if you have entered into a valid contract to leave someone some property in your will, you may not be able to negate that contract simply by disinheriting the person in you will.

What can you do if your executor's name changes?

"My executor, who is my daughter, has married and changed her last name. Do I need to change my will?"

This concern can be handled easily. The safest method is to prepare an amendment to your will, called a codicil, setting forth your daughter's new name. But even if you don't do that, a probate court would most likely interpret your choice for executor to mean your daughter, since you used her legal name as it existed when you wrote your will.

Does my Will need witnesses?

Typically, your written will must be signed or acknowledged by you in the presence of at least two disinterested persons as witnesses. Afterwards, they sign your will attesting to their act of witnessing your signature or acknowledgment. They usually certify that when you signed the will you signed voluntarily and were of sound mind.

Your signatures, as well as the witnesses' signatures, are notarized. In many states (but not all states), this makes the will a self-proving will and allows the will to be admitted to probate with no evidence from your witnesses other than the affidavit in the will.

Can my beneficiary be a witness?

It is generally discouraged to have one of your beneficiaries (even alternates) also be a witness of the will. This is important - a witness who is left property in your will may be disqualified from inheriting more than the witness would have under state law if you had not made a will, and the entire will may even be invalidated.

What do I do if I want to make changes?

You may change your will as often as your life circumstances change. Whether you want to add a new child to your will as a beneficiary or replace your executor with someone else, For The People can prepare a Codicil to reflect these changes.

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