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What
Happens if You Die Without A Will?
If
you die intestate (without a will), your
state's laws of descent and distribution will
determine who receives your property by
default. These laws vary from state to state,
but typically the distribution would be to
your spouse and children, or if none, to other
family members. A state's plan often reflects
the legislature's guess as to how most people
would dispose of their estate and builds in
protections for certain beneficiaries,
particularly minor children. That plan may or
may not reflect your actual wishes, and some
of the built-in protections may not be
necessary in a harmonious family setting. A
will allows you to alter the state's default
plan to suit your personal preferences.
What
a Will Does
A
will provides for the distribution of property
owned by you at the time of your death in any
manner you choose (subject to the forced
heirship laws of some states that prevent
disinheriting a spouse and, in some cases,
children). Your will cannot, however, govern
the disposition of properties that pass
outside your probate estate (such as certain
joint property, life insurance, retirement
plans and employee death benefits) unless they
are payable to your estate.
Wills
can be of various degrees of complexity and
can be utilized to achieve a wide range of
family and tax objectives. If a will provides
for the outright distribution of assets, it is
sometimes characterized as a simple will. If
the will establishes one or more trusts, it is
often called a testamentary trust will.
Alternatively, the will may leave probate
assets to a preexisting inter vivos trust
(created in your lifetime), in which case it
is called a pour over will. In either case,
the purpose of the trust arrangement (as
opposed to outright distribution) is to ensure
continued property management and creditor
protection for the surviving family members,
to provide for charities, and to minimize
taxes.
Aside
from providing for the intended disposition of
your property to spouse, children etc., there
are a number of other important objectives
that may be accomplished in your will.
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You
may designate a guardian for your minor
child or children if you have survived the
other parent-and, by judicious use of a
trust and appointment of a trustee,
eliminate the need for bonds and
supervision by the court regarding the
care of each minor child's estate |
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You
may designate an executor of your estate
in your will and eliminate the need for a
bond; in some states the designation of an
independent executor will eliminate the
need for court supervision of the
settlement of your estate. |
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You
may choose to acknowledge or otherwise
provide for a child (e.g., stepchild,
godchild, etc.) in whom you have an
interest, an elderly parent, or other
individuals. |
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If
you are acting as custodian for the assets
of a child or grandchild under the Uniform
Gift (or Transfers) to Minors Act, you may
designate your successor custodian and
avoid the expense of a court appointment. |
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Good
planning can also enhance your support of
religious, educational, and other
charitable causes. |
What
A Will Does Not Do
A
will does not govern the transfer of certain
types of assets, called nonprobate property,
which by operation of law or contract pass to
someone else on your death.
How
to Execute a Will
Wills
are signed in the presence of witnesses and
certain formalities must be observed. A later
amendment to a will is called a codicil and
must be signed with the same formalities. In
some states, the will may refer to a
memorandum disposing of tangible personal
property, such as furniture, jewelry,
automobiles, etc., which may be changed from
time to time without the formalities of a
will. In many states, a will that is formally
executed with the signatures notarized is
deemed to be self proved and may be admitted
to probate without testimony of witnesses or
other additional proof.
The
purpose of this newsletter is to stimulate
thought for my clients and those professionals
with whom I network. If you are a real
estate, estate planning, taxation, financial
planning or insurance professional receiving
this newsletter, please call my office and
introduce yourself to me. I'm always
seeking to grow my referral network, and to
expose more service professionals to my client
base. I specialize in helping those
individuals looking to buy, sell or refinance
real property in the Pacific Northwest Area. |
