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Steven R. Booker, P.C.

What a Will is and Why You May Need One

A Will is a legal document that establishes your desires of the distribution of your assets and the care of any minor children upon your death. If you pass away without a Will in place, there’s no guarantee that your wishes will be carried out and it could leave decisions about how to handle your estate in the hands of the courts and the state. Additionally, if you don’t have clear directions about what you wish to happen once you pass, it could also cause family turmoil. Finally, your heirs could be forced to spend unnecessary time, money, and energy to finalize and settle your affairs after you’re gone.

A Will’s primary purpose is to allow you to direct how your belongings, or assets, should be distributed.

The biggest misconception we run into in the business of creating a designing Wills is the fact that people think Wills, or estate plans in general, are only for the rich. Wrong. A Will is a vital part of any estate plan and it is critical, especially for the “average Joe” to have in place. Warren Buffett’s 80.5 billion dollar estate can take a hit; yours can’t. That is why it is important to protect it and to preserve every bit of it you can.

A Will is the primary documents used to transfer your assets upon your death. YOU should decide who inherits which assets and when they should receive it. YOU should decide who you want to oversee and manage your estate by appointing them as executor and/or trustee. YOU should choose a guardian for your minor child or children. YOU should provide instructions for the orderly management and continuance or sale of a family business. YOU should have a say over what happens with your stuff once you are gone; not the court and not the state.

What happens to your property after you pass?

Under state and federal law, once you pass, the assets you accumulated throughout your life must pass to other parties. How that property gets distributed to your heirs (i.e. automatically or through the court) depends upon the type of property you own, how you own the property, and if any beneficiaries are designated. Property that passes automatically upon your death is done through beneficiary designation and is called non-probate property. It does not have to go through the probate court to get into the hands of your heirs. Property that does not have a beneficiary designation must go through the probate court before it can get into the hands of your heirs, and is called probate property.

Your Will

As discussed above, property that does not pass to your heirs by beneficiary designation must go through the probate court. Your heirs must file an application (or petition) for probate and submit the Will to the court for it to be validated. Once the Will is validated, the court will appoint an administrator (or executor) that must complete the rest of the process which includes putting any creditors on notice, filing an inventory list, and finally, distributing the remaining assets to your heirs based on the terms set out in your Will. As you can see, a properly executed Will allows you to choose who you want to receive your property upon your death. Unless the Will is contested, the court will enforce your wishes as laid out in the Will. It is important to remember that ALL states prohibit the disinheritance of a spouse. This means that your spouse has a right of election and may demand a percentage of your estate no matter what the Will says.

What happens if you don’t have a Will when your pass?

If you pass away without a Will in place, the property that is in your name will be distributed by the state according to its laws of descent and distribution. The laws vary from state to state, but this type of distribution is referred to as intestate distribution. As you can imagine, what you want and what the state wants or deems fit, properly don’t align. The state’s pattern of distribution may not provide for the distribution you prefer.

Jointly Owned Property

Most married couples own the majority of their assets together with the right of survivorship. This means that when one spouse dies, the surviving spouse automatically receives the other spouse’s portion and has complete ownership of the property. Because of this type of distribution, most people falsely believe this ownership precludes the necessity for the parties to have a Will. Because the surviving spouse becomes the sole owner of the property, he/she needs a Will to direct its distribution upon his/her subsequent death. Since we can’t predict life and we don’t know which spouse will survive the other, it is important that both spouses have a Will in place to protect against any uncertainties.

Life Insurance

Because life insurance policies have a named beneficiary, they pass without regard to a person’s Will and therefore, will generally pass outside the probate system.

Retirement Plans and Trusts

Other assets that may pass to named beneficiaries automatically include benefits of qualified retirement plans, annuities, and trusts.

Get a Will Now

If you own any property outright, it is recommended that you have a Will in place.

In summary, a Will allows you to:

  • Clearly define who gets what and how much.
  • Safeguard your assets from people you do not want to have them.
  • Clearly identify who you want to care for your children.
  • Ease the burden that will be put on your heirs once you pass. Your heirs will have a much faster, easier, and smoother time handling your affairs once you are gone.
  • Plan every part of how your estate is handled. You can save your estate money on taxes or you can give gifts and charitable donations, offsetting the estate tax.

When you die without a Will, the state takes your place in making all the decisions about the distribution and disposition of your assets.   

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