Wills are the most basic element of estate planning. A will is a written or oral communication by a person stating how they want their property disposed of at death. A written will, prepared by an experienced attorney, allows you to:
- Select the person responsible for carrying out the wishes you set forth in the will. This individual is known as the executor or personal representative;
- Direct the payment of debts and taxes;
- Make specific bequests or gifts of tangible property like family heirlooms or sentimental items. It is useful to include the language, “If owned by me at the time of my death” in case the item has been sold or lost, in your estate planning document;
- Control the distribution of the remainder (residue) of your other property;
- Name a guardian or guardians for your minor children and their property;
- Specify your preferred burial arrangements.
A court will consider a document to be a valid will if, looking only at the document itself, it finds that it was intended to be the final expression of the person’s wishes. Additionally, the person creating the will must be of “sound mind.” While each state varies in its specific requirements, sound mind is usually established in court by showing that the person making the will:
- Was legally old enough to understand what they were doing, usually 18 years old;
- Knew what assets they owned;
- Directed the disposition of those assets to people or institutions generally expected to receive them;
- Understood that, by signing it, the will made a final disposition of property.
Generally,it is only required that the person understands the will and its contents at the time of signing. That means, a person who is failing mentally but still has “good” days can make a will during lucid periods as long as the person understands what they are signing.
Usually, a letter stating one’s desires or a list of property is not a valid will. There are many types of wills, including holographic wills, video wills, and self-proving wills, and each has its own requirements in order to make it valid. While each state law varies, a will must generally have witnesses in order to be valid.
What if there is no will?
When a person dies without a will, he or she dies intestate. If you die intestate the laws in the state where you live control distribution of your assets. The state may appoint a lawyer to oversee the distribution of your estate and that lawyer will be paid out your estate’s assets. The state may even claim your property if you have no apparent heirs. If you do have heirs, they may be forced to pay sizable taxes in order to keep the property you have left behind. The state will also appoint a guardian for your children without any input from you.
Usually, estate matters are handled in state probate court. When you die intestate, the first thing the state will do is appoint an administrator. This administrator is often required to pay certain fees and post a bond. These costs are charged back to your estate. If your family cannot decide who should be appointed as the administrator, the court may appoint an attorney who will charge your estate for their time. Once the administrator is appointed, they will look to the state laws for guidance on the distribution of your assets. Because you have not expressed your wishes, the state will substitute its own judgment about distribution of assets to the following people:
- Your spouse: Most states provide that a certain sum be set-aside for the surviving spouse and/or children. This amount is usually taken “off the top” before any claims by creditors, beneficiaries and other heirs are paid, but it is generally a modest amount. Many states also give the surviving spouse an interest in any real estate owned by the decedent.
- Your children: If you have children, many states will award them the remaining portion of the estate. If you were a single parent, your children will inherit your entire estate. Your children could end up with a large sum of money even if they are infants. A court appointed guardian usually supervises this money until your children reach the age of eighteen. Thus, at age eighteen your child might suddenly have a large sum of money at their disposal to spend however they like.
Your parents and siblings: If you are unmarried and have no children, your estate will go to your parent(s) or, if they have both died, to your brothers and sisters. Similarly, if you are married but have no children, the portion of your estate remaining after your spouse receives his/her share will go to your parents, or if they have both died, to your brothers and sisters.