The term “Will” is something
that many people are familiar with, but seldom truly understand.
Ask the average person, and you will likely be told that the
purpose of a last will and testament is to disburse property to
heirs upon the death of the author.
While true, there are many other
aspects to a last will and testament that many people don’t know
or understand. A will
can be a very simple document with very simple provisions or it can
be an extremely complicated document with complicated rules and
In other words, you can pretty much
make a will what you want it to be as long as it falls within the
laws of the state in which it is to be executed.
A will is first, a legal
document. A properly written will carries the full weight of the law
and courts consider them to be amongst the most sacred of documents
because the writer of the will is not around to explain the will or
make modifications to it.
Courts will seldom overturn any
provision of the will unless they are found to be contrary to the
law, the situation has changed dramatically and it can be shown that
the writer would have changed things, or it can be proven that the
writer was incompetent or under duress when they wrote the will.
Therefore, it is crucial that every
element of the will is properly written and well articulated.
It is equally important that your will be kept up to date.
A will that no longer adequately reflects your wishes, will
still be honored by the court in almost every circumstance.
Appointing an Executor in your
Another important aspect of a will
is to name the executor or the person that will be in charge of
wrapping up the affairs of the estate, paying final expenses. If
there is no Will, the property is distributed according to the state
law of intestacy. (Note that one who dies with a Will
is said to have died "testate,” and is called the
"Testator." A decedent without a Will has died “intestate.”).
is then up to the court to appoint an administrator who will appoint
an executor. If there is a family disagreement over who this
should be, the administrator will generally appoint a 3rd party who
will probably charge the estate for his/her services.
bequeath property to heirs
other basic aspect of any proper will is to specify how property
will be disbursed to the heirs as well as who the heirs are.
If there is no will, the property will be disbursed according to
state law, and there are many misconceptions as to what state law
dictates. For instance, when there are children, not all
property is automatically given to the remaining spouse.
more information on how the duties of the executor and how property
is disbursed, click
Who needs a will?
The short answer is… everybody
needs a will! We often hear people say that since they don’t have much,
they don’t need a will. Others
say that their kids know how assets are to be divided and therefore,
they don’t need a will.
Whether you have just a few assets
or a very complicated estate with a large amount of assets, everyone
should have a will. Not
all wills need to be complicated or even written by an attorney. To be safe however, we recommend that you consult an attorney
in the preparation of your will.
Doing so can prevent many problems and make sure that your
will is written according to the laws of your state.
may think that everyone understands how your assets are to be
divided and indeed they may. However,
many families’ relationships have been ruined over relatively
minor misunderstandings or because things have been changed.
excuses for not creating a will:
“Everybody already knows
who’s supposed to get what.” OR
“In my desk drawer there’s
a list of my possessions, and the persons to whom they should be
“I don’t have much. The
kids can just come in and divide it among themselves however they
“I put name tags on the
bottom of every nick-knack and piece of furniture, so they’ll know who gets it.”
“Last year I put all my
money in a joint account with my oldest daughter. After I die, she
knows to split it three ways with her brothers.”
People can surprise you
All the common situations above
(and any others you might add) are prescriptions for trouble, for
various reasons. There is simply no way for anyone to enforce your
intended plan if it is not contained in a Will. Families can be
forever torn apart, jockeying for position over the distribution of
even small amounts of property.
people acknowledge the pitfalls - for others - of not having a Will.
But their kids, so they say, would respect the parents’ wishes and
never stoop to fighting over the estate.
if these folks are right, what about the kids’ spouses? In-laws
(sons and daughters, particularly) can be a problem. Whether it is
well intentioned or not, meddling is a specialty with some of these
you spell out your wishes in a Will, the door may be open, for
example, for your pushy son-in-law to have his say about things, or
to pressure your daughter. Never mind that the issue is absolutely
none of his business!