What Can A Will Do For Me?

A will is a legal document that allows you to transfer your property at your death. It puts you in control by providing you with a voice in the courtroom when you are no longer able to speak for yourself. Your will is able to speak for you in court and deliver your wishes for important matters such as: who gets your property, who will be a guardian for your children or your children's property, who will manage your estate upon your death, along with many other matters.

The goal of this publication is not to teach you everything you need to know about wills, but to give you an introduction to what a will is, and what a will can do for you. The information in this publication is offered only for informational purposes and as a public service to the community. This information is not meant to provide legal opinions, offer advice, or be used as a substitute for speaking with a licensed attorney.

Who Will Receive Your Property

By drafting and properly executing a will, you have power over where most of your property will be distributed. Most individuals have probably given some thought about whom they would like to receive their property, and at times, those wishes may be simple. You may want to give everything outright to a spouse, your adult children, your sibling, or a good friend. Giving all of your assets outright to one or a few people creates primary beneficiaries, and while this plan may appear simple, it rarely is. Naming secondary beneficiaries is advantageous to your will, because something may happen to your first choices and it's in your best interest to have a back-up plan.

For example, if you give everything outright to your three children, all of whom have given you the gift of grandchildren, what would happen if any of your children pass away before you? Will their share be split between their two siblings, or would you like their share to go to your grandchildren. And if those grandchildren are minors, it will be important for their parents' to have their own wills to make sure they have named guardians to help protect their minor children's assets (More on guardians later).

In short, while a beneficiary designation may appear to be a simple decision to make, creating a will gives you a chance to safeguard yourself and your assets more thoroughly by bringing your designations to the next level of protection. The considerations of secondary beneficiaires, what to do if you want a gift to be shared by more than one beneficiary, possibly disinheriting a child so he or she receives nothing, and much more, are pertinent decisions to think about to provide yourself with the best plan in your will. A plan that will get your assets where you would like them to go once you're gone.

Who Will Manage Your Estate

Another useful characteristic of a will is the power it gives you to name who will manage your estate and make sure your wishes are followed as closely as legally possible. This person is called your Personal Representative. He or she may also be referred to as your Administrator or Executor. Your Personal Representative will have the task of bringing your will to the probate court to begin the legal process of administering your assets, resolving claims, and doing whatever else must be done in order to get your beneficiaries the assets you left for them in your will. In probate court, your Personal Representative will also be formally attached to your estate so it will be known that he or she is responsible for dealings with the court concerning your estate.

The ability to make this decision regarding who will manage your estate is important and puts more power in your hands. Being able to name your Personal Representative in your will allows you to give the authority and control of handling your estate to someone you know and trust. It is a significant piece of your will and naming someone close to you gives you confidence in how your estate will be handled once you are gone. Your choice of Personal Representative is also important because if one is not named in your will, the court will choose one for you, and it may not be the person you would have chosen.

Naming Guardians For Your Children

If you have a minor child, a will is a powerful tool in helping you create a plan that will provide for him or her if you pass away unexpectedly before he or she reaches age 18. Naming guardians in your will gives the state, and the guardians themselves, information pertaining to how you would like things handled for your minor child. If both parents pass away, another adult must be legally responsible for raising the minor child and this person is referred to as the Personal Guardian. In most states, naming a personal guardian for a minor child can only be done in a will, which is another reason a will is so important.

While the personal guardian is responsible for the day to day tasks involved in raising your child, this does not mean that this person is automatically the person that will be managing the assets you left behind for your child. A different adult can be named to manage the child's property if that is preferable to you. For example, if the person you named as personal guardian will be a wonderful caretaker, but is not the best with managing finances, you can name another to manage your child's property. This property manager will manage your child's property for them pursuant to the directions in your will. A custodianship, trust, and a property guardianship are beyond the scope of this publication, but they are all different ways in which you can choose to leave property to your minor child that will protect the assets so they can be used for the wellbeing of your child.

Where Should You Store Your Will

Your will should be stored in a safe place where it is likely to not be ruined and can be accessed by your Personal Representative. A fireproof safe in your home is typically ideal, but some people prefer lockboxes at their bank, or something else entirely. Wherever you decide to keep your will, two necessities that you must keep on your mind are the will's safety, and your Personal Representative's ability to find your will when it needs to be used. Both of these necessities are in play because you want your will to actually be used in court when the time comes. If the only copy of the will was damaged and can't be read or if your Personal Representative doesn't know where your will is and/or does not have the key or access code to retrieve it, your hard work in creating a will that relayed your wishes will have been for nothing.

Popular Misconceptions

1. A will avoids probate

A will does not avoid probate. In fact, a will MUST go through probate court to be probated. However, the creator of a will (the testator) has the power to decide that their will should be probated formally or informally. Formal probate requires that the court be much more involved, and most actions that the Personal Representative would like to make will have to be stated in court and signed off on by the judge. Informal probate makes the court less involved and gives a bit more leniency to your Personal Representative when taking certain actions concerning your estate.

2. Every asset you have will be transferred by your will

Many of the assets that you acquire through life will, and can, be transferred through your will, but there are certain assets and property that will not be transferred through the use of your will. Assets that you own solely in your name will transfer through your will, and because of this, these are called probate assets. Non-probate assets do not transfer through your will and include assets and property that you may own jointly with someone else or other assets that by their own design are not probate assets.

An example of a non-probate asset that may not be entirely in your name is your home. Many couples own their homes as joint tenants with rights of survivorship. What this means is that the home is transferred to the surviving party without going to probate court, because of their right of survivorship. Examples of assets that by their own design are non-probate assets include things such as: life insurance, some retirement accounts, pay-on-death accounts, transfer-on-death deeds, and a few others. For the most part, these are non-probate assets because the asset itself has been designed in such a way that it automatically transfers the asset to a beneficiary. And by automatically transferring the asset to the beneficiary of your choice, the asset bypasses the probate court. Putting your assets in a trust is another way to allow some assets to bypass the probate court. For more information on Trusts, see the "What Can A Trust Do For Me" publication here.

For a more in depth discussion concerning a will for yourself or someone you know, please contact Renee Ashland by phone at 763-691-9883, or by email at bezel@reneeashland.com.