What About My Will?

No matter what the age or financial situation, every adult should have a will. A will is a legally binding document that can prevent a great deal of problems for your survivors. If you die without a will, state law will determine who inherits your property and assets, and it is unlikely that they will be given to the persons you desire or in the proportions you would choose. Without a will, state laws and the probate judge will determine who will administer your estate, handle financial matters, and act as guardian for your children. Through a will, you can make these choices and decisions yourself.

In making your will, you should name an executor of your estate. Because he or she will be responsible for filing with the court and carrying out the provisions of your will, the executor should be someone with whom you feel completely confident.

Upon your death, your will must be probated and your estate administered. The will is formally offered in court. The personal representative is then approved by the court, estate inventory is prepared and filed, the debts and taxes are recognized and paid. Finally, the representative files his or her account and requests that the remaining estate assets be distributed in accordance with your wishes, as stated in the will. This process takes time, is complicated, and has legal pitfalls. You are advised to discuss the administration of your estate with an attorney.

The law is quite specific in its requirements with respect to the drafting, execution, and witnessing of wills. Wills may be contested due to legal technicalities that may have been overlooked when prepared by someone inexperienced with the procedure. For this reason, the services of a competent attorney are recommended both in drawing up the will and in settling the estate. Some homemade or “do-it-yourself” wills lack some necessary legal requirements and are subsequently ruled invalid by the courts. In any event, it is always wise to comparatively shop for an attorney you can afford, trust and feel comfortable with.

You should review your will every few years, particularly if you have moved or if your family situation (i.e., divorce, birth of a child, death of a beneficiary, etc.) has changed since you last executed a will. State laws vary as to formal requirements and as to the rights of children and grandchildren born after a will was executed.

In the absence of a will, the procedure is the same except that the court, not you, makes many of the critical decision. In addition, the process is likely to take much longer, and there may be different tax consequences than if you had left a will. In the meantime, your assets may be tied up for quite a while before being disbursed by the court in accordance with state laws or inheritance.

Federal and state laws regarding will and estate taxes change from time to time. Your attorney should review your will periodically to ensure that it takes maximum advantage of the changes in law.