Understanding a Will

The term “Will” is something that many people are familiar with, but seldom truly understand.  Ask the average person, and you will likely be told that the purpose of a last will and testament is to disburse property to heirs upon the death of the author.  

While true, there are many other aspects to a last will and testament that many people don’t know or understand.  A will can be a very simple document with very simple provisions or it can be an extremely complicated document with complicated rules and provisions.  

In other words, you can pretty much make a will what you want it to be as long as it falls within the laws of the state in which it is to be executed.

A will is first, a legal document.  A properly written will carries the full weight of the law and courts consider them to be amongst the most sacred of documents because the writer of the will is not around to explain the will or make modifications to it. 

Courts will seldom overturn any provision of the will unless they are found to be contrary to the law, the situation has changed dramatically and it can be shown that the writer would have changed things, or it can be proven that the writer was incompetent or under duress when they wrote the will.  

Therefore, it is crucial that every element of the will is properly written and well articulated.  It is equally important that your will be kept up to date.  A will that no longer adequately reflects your wishes, will still be honored by the court in almost every circumstance.  

Appointing an Executor in your will

Another important aspect of a will is to name the executor or the person that will be in charge of wrapping up the affairs of the estate, paying final expenses.  If there is no Will, the property is distributed according to the state law of intestacy. (Note that one who dies with a Will is said to have died “testate,” and is called the “Testator.” A decedent without a Will has died “intestate.”).  

It is then up to the court to appoint an administrator who will appoint an executor.  If there is a family disagreement over who this should be, the administrator will generally appoint a 3rd party who will probably charge the estate for his/her services.

Wills bequeath property to heirs

The other basic aspect of any proper will is to specify how property will be disbursed to the heirs as well as who the heirs are.  If there is no will, the property will be disbursed according to state law, and there are many misconceptions as to what state law dictates.  For instance, when there are children, not all property is automatically given to the remaining spouse.

For more information on how the duties of the executor and how property is disbursed, click here.

Who needs a will?

The short answer is… everybody needs a will!  We often hear people say that since they don’t have much, they don’t need a will.  Others say that their kids know how assets are to be divided and therefore, they don’t need a will.  

Whether you have just a few assets or a very complicated estate with a large amount of assets, everyone should have a will.  Not all wills need to be complicated or even written by an attorney.  To be safe however, we recommend that you consult an attorney in the preparation of your will.  Doing so can prevent many problems and make sure that your will is written according to the laws of your state.You may think that everyone understands how your assets are to be divided and indeed they may.  However, many families’ relationships have been ruined over relatively minor misunderstandings or because things have been changed. 

Common excuses for not creating a will:

“Everybody already knows who’s supposed to get what.” OR

“In my desk drawer there’s a list of my possessions, and the persons to whom they should be given.” OR

“I don’t have much. The kids can just come in and divide it among themselves however they decide.” OR

“I put name tags on the bottom of every nick-knack and piece of furniture, so they’ll know who gets it.” OR

“Last year I put all my money in a joint account with my oldest daughter. After I die, she knows to split it three ways with her brothers.”

People can surprise you

All the common situations above (and any others you might add) are prescriptions for trouble, for various reasons. There is simply no way for anyone to enforce your intended plan if it is not contained in a Will. Families can be forever torn apart, jockeying for position over the distribution of even small amounts of property.Many people acknowledge the pitfalls – for others – of not having a Will. But their kids, so they say, would respect the parents’ wishes and never stoop to fighting over the estate. 

Even if these folks are right, what about the kids’ spouses? In-laws (sons and daughters, particularly) can be a problem. Whether it is well intentioned or not, meddling is a specialty with some of these people. 

Unless you spell out your wishes in a Will, the door may be open, for example, for your pushy son-in-law to have his say about things, or to pressure your daughter. Never mind that the issue is absolutely none of his business!