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A Last Will and
Testament is the legal document that controls the disposition
of your property at death and may provide for guardianship for
your children after your death. A will is not effective until
death. As long as you are living, your will has no effect and
no property or rights to property are transferred by it.
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Your estate consists
of all your property and personal belongings that you own or
are entitled to possess at the time of your death. This includes
real and personal property, cash, savings and checking accounts,
stocks, bonds, real estate, and automobiles. Although the proceeds
of insurance policies may be considered part of your estate in
some states, a will does not change the designated beneficiaries
of an insurance policy. The proceeds of an insurance policy will
normally pass to the primary or secondary beneficiary designated
on the face of the policy. Even if you do not have very much,
you probably still have some things you would like to pass on
to your loved ones. Your estate grows daily in value through
repayment of mortgages, appreciation of real estate, stocks and
other securities, possible inheritances from other relatives
and other factors.
Avoid family
disagreements. Many families struggle over who should get what.
A will allows you to give your things to whomever you want, not
to whomever a judge decides will get it.
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- ESTATE: All that one owns in
real estate, personal property and other assets.
- EXECUTOR: The person appointed
to manage the estate of a person who has died. Unless there is
a valid objection, the judge will appoint the person named in
the will to be the executor. This should be a competent person
that you trust and who has the time to carry out the terms of
your will. It can also be an attorney or a bank.
- GUARDIAN: A person who will take
care of your minor child if the other parent is unable. Naming
a guardian for your child only expresses your wishes. The court
makes the final decision in the appointment of the guardian.
- HOLOGRAPHIC
WILL:
A handwritten Will that is written, dated and signed by the testator.
(The person making the will.)
- INCAPACITY: Lacking the ability
to understand one’s actions.
- INTESTATE: When a person dies
without leaving a valid will.
- PROBATE: The process of proving
a will is valid and then doing what was stated in the will.
- TESTATOR: A person who has written
a will.
- BENEFICIARY: A person who receives
property through a will is known as a beneficiary.
- SECONDARY
BENEFICIARY:
Those who inherit property in the event the primary beneficiary
dies before you.
- CODICIL: A written modification
to a person’s will, which must be dated, signed and witnessed
just as a will would be, and must make some reference to the
will it amends.
Any person may
make a will who is eighteen (18) years of age or older and of
sound mind. Being of sound mind means that you have the ability
to understand the consequences of your actions. Your will can
be challenged if someone feels you were not of sound mind when
you made the will. In addition to being eighteen years old and
of sound mind, in order for a will to be valid, it must be in
writing, the testator (person making the will) must sign it,
and, if typed, two or more witnesses are needed. Oral wills are
not valid. Your legal residence is the state in which you have
your true, fixed and permanent home, and to which, if you are
temporarily absent, you intend to return. Voting, paying taxes,
owning property and motor vehicle registration are some indications
that one is a legal resident of a state. Your legal residence
may affect where your will is probated and the amount of state
inheritance or estate tax that may be paid at death. Generally
speaking you are free to give your property to whomever you desire.
However there are some exceptions. Most states have laws that
entitle spouses to at least part of the other spouse’s estate.
This statutory share ranges from 1/3 to 1/2 of the other spouse’s
estate. Some states also provide shares of the estate to children
of the decedent. Insurance proceeds and jointly owned property
may be controlled by other provisions of the law.
A guardian should
be named in a will to ensure that the minor children and their
estates are cared for in the event that both parents should die.
Your guardian should be chosen with great care as this person
will be charged with the duty of raising your children and managing
their legal affairs. Do not automatically assume that your parents
or any other relative will be suitable guardians. A substitute
guardian should also be chosen with the same care as the primary
guardian just in case the primary guardian cannot serve in that
capacity. This decision on your part will be of great assistance
to the court in determining who will be granted custody of your
children. Joint bank accounts and real property held in the names
of both husband and wife with right of survivorship usually pass
to the survivor by law and not by the terms of the deceased’s
will. There may be cases in which it is not to your advantage
to hold property in this manner. When a person dies without a
will (intestate) the property of the deceased is distributed
according to a formula fixed by law. In other words, if you don’t
have a will you don’t have any say as to how your property
will be divided. Usually a person would prefer that all of his
estate go to the surviving spouse. If there are any children
under 18 the property cannot be delivered to them and a guardian
must be appointed for them. Probate is the process of proving
a will is valid. You must file the will with the clerk of the
court in the county where the deceased person lived, along with
a petition to have the court approve the will and appoint an
executor (or executrix, if female). The court will then determine
if the will is valid. It usually costs less to administer an
estate when a person leaves a will. A properly drafted will can
take advantage of Federal and State tax laws. You can change
your will with a writing called a codicil . A codicil can add
to, subtract from or modify the terms of the original will. Keep
the codicil with the original will. Choose a safe place where
someone else can find the will after you are gone. Someone you
trust should know that the will exists and where it is located.
A will does not have to be recorded or filed with anyone until
after death. A will can be be deposited with the probate court
for safe keeping.
about the
author:
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print on your computer or fill in with pen. |
