- Who can write a Will? Anyone who is age 18 or older can sign a Will. That person must be competent. The person may not be under undue influence, which means no one is twisting his or her arm to give the property to a particular person. Lastly, the Will must be prepared properly to meet the legal standards required by the State laws.
How can you use a Will to help you accomplish your goals? Many are surprised to learn what a Will DOES and DOES NOT do.
First, what DOES a Last Will and Testament accomplish?
- A Will has three major parts: who will be in charge of your affairs, who will get your assets, and who will be the guardian for your minor children.
- The person in charge of a decedent’s estate is called a Personal Representative in Idaho, but in other states they are identified as an Executor or Administrator. It is best to name an alternate should the first person not be available. Their job is to protect the assets, gather them up, pay the bills and ultimately distribute the assets to the right people or charities.
- The Will also identifies who receives the assets of the decedent. Of course the “stuff” such as the ring, gun and china is distributed, but then there are the larger assets such as the house and cash. If a minor, a person under age 18, receives property it is helpful to state who should manage the property for them until they reach age 18, and frequently the funds are managed until that person is more mature, such as age 30. Most Wills mention who gets a share if an heir named in the Will dies first.
- If you have children under age 18 it is good to nominate who will be their guardian, to raise them.
What DOES a Will NOT do?
- A Will does not avoid the costs, delays, and publicity of probate. Probate is the court-supervised process of approving your Will, removing your name from titles at your death, and passing on your assets to the persons named in your Will. Because probate is in the local court system, there are court costs and attorneys fees to be paid. In Idaho, it takes a minimum of six months to go through probate and often longer. And, because probate is a public process, any “interested party” can read your Will and learn about your estate. The probate process, not your family, determines how much it will cost, how long it will take, and what information is made public. Also, many people are surprised to learn that a trust in a Will (called a Testamentary Trust) does not avoid probate. The Will must be probated before the Testamentary Trust can go into effect.
- A Will does not help if you become disabled. That’s because a Will only goes into effect at your death. If you become unable to handle your financial affairs (pay bills, make investment decisions, etc.) due to mental or physical incapacity (for example, because of Alzheimer’s Disease, stroke, heart attack, or injury), your spouse and other family members cannot automatically step in for you. If you have no other plan in place, you get the State’s plan—a court-appointed “conservator.” This ongoing court process can be expensive, embarrassing, time consuming, and difficult to end if you recover. And your conservator may not be able to protect assets should you need care in a nursing home.
- A Will does not control all of your assets. Most jointly owned assets and those with beneficiary designations (life insurance and retirement accounts) are not controlled by your Will. When you die these assets automatically go to the surviving joint owner or person you have named as Beneficiary (assuming, of course, this person is alive, competent, and an adult at that time). This can cause one person to receive more or less than you intended, and can even cause you to unintentionally disinherit someone. If your estate is more than $1,000,000 and you die in 2011 and beyond and these assets go to your spouse, it could also cause you to pay too much in death taxes.
- A Will does not prevent Court control of assets left to minor children or grandchildren. If you leave assets to a minor child or grandchild in your Will, the Court will set up a costly conservatorship to “protect” the child’s assets until he/she reaches age 18. Including a Trust in your Will can help prevent this, but the Will must go through probate before the Trust can go into effect.
Summary: Signing a Last Will and Testament is a good step to take to accomplish your vision of the future for you and your family. Future blogs will address other estate planning options.
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At The Graham Law Office, we help retired people create security in their lives by protecting their assets, family and independence from excess taxes, health tragedies and the interferences of strangers, even if they are embarrassed to admit their retirement fears. Call for a FREE appointment with attorney, Susan Graham, to help create your security. Call before next Friday and we will send you a FREE report entitled “16 OF THE MOST COMMON AND COSTLY ESTATE PLANNING MISTAKES, AND HOW TO AVOID THEM.”
