Wills
Wills generally are the best way for people to state their preferences about how their estates should be handled after their deaths. Many people use their wills to express their deepest sentiments toward their loved ones. A well-written will eases the transition for survivors by transferring property quickly and avoiding many tax burdens. Despite these advantages, many estimates figure that a high percentage of Americans do not have valid wills. While it is difficult to contemplate mortality, many find that great peace of mind results from putting one's affairs in order.
Wills vary from extremely simple single-page documents to elaborate tomes, depending on the size of the estate and the preferences of the person making the will (the testator or testarix). Wills describe the estate, name the people who will receive specific property (the devisees), and can even provide special instructions about care of minor children, gifts to charity, and formation of posthumous trusts. Some people choose to disinherit people who might otherwise be expected to receive property or who, in the absence of a will, might be entitled to receive property under the state law of intestate succession. In each example, the formal legal rules for wills must be carefully followed in order to make the document effective.
Formal requirements for wills vary from state to state. Generally, the testator must be an adult of sound mind, meaning that the testator must be able to understand the full meaning of the document. Wills must be written. Some states allow a will to be in the testator's own handwriting, but a better and more enforceable option is to use a typed or pre-printed document. A testator must sign his or her own will, unless he or she is unable to do so, in which case the testator must direct another person to sign the will in the presence of witnesses. The signature must be witnessed and/or notarized. A valid will remains in force until revoked or superseded by a subsequent valid will. Some changes may be made by amendment (codicil) without requiring a complete rewrite.
Some legal restrictions may prevent a testator from giving full effect to his or her wishes. Some laws prohibit disinheritance of spouses or dependent children. A married person cannot completely disinherit a spouse without the spouse's consent, which may be given in a pre-nuptial agreement. In most jurisdictions, a surviving spouse has a right of election, which allows the spouse to take a legally-determined percentage (up to one-half) of the estate when he or she is dissatisfied with the will. While non-dependent children generally may be disinherited, this preference should be clearly stated in the will in order to avoid confusion and possible legal challenges.
Some property may not descend by will. For example, property owned in joint tenancy may only go to the surviving joint tenant. Also, pensions, bank accounts, insurance policies and similar contracts that name a beneficiary must go to the named party.
A will usually appoints a personal representative (or executor) to perform the specific wishes of the testator or testatrix after he or she passes on. The personal representative need not be a relative, although testators typically choose a family member or close friend, as well as an alternate choice. The chosen representative should be apprised of his or her responsibilities before the testator dies to ensure he or she is willing to undertake these duties. The personal representative consolidates and manages the testator's assets, collects any debts owed to the testator at death, sells property necessary to pay estate taxes or expenses, and files all necessary court and tax documents for the estate.
A testator who has any minor or dependent children should name a guardian to care for the child or children if no parent survives. If a will does not name a guardian, a court may appoint someone who may not be the individual the testator would have chosen. Again, a testator usually chooses a family member or friend to perform this function, and often names an alternate. Potential guardians should know they have been chosen, and should fully understand what may be required of them. The choice of guardian often affects other will provisions, generally to provide financial support to the guardian in raising surviving children.
A person who dies without a valid will or some alternative arrangements to distribute property, may leave survivors to face a complicated, time-consuming, and expensive legal process. Dying without a will leaves an estate intestate, and a probate court must step in to divide up the estate using legal defaults to give property to surviving relatives. The court pays any unpaid debts and death expenses first, then follows the legal rules set forth in state law. The rules vary depending on whether the deceased was married and had children, and whether the spouse and children are alive. If the intestate individual has no surviving spouse, children, parents, or grandchildren, the estate is divided between various other relatives. Therefore, intestacy may mean that the testator's property goes to people who would never have been chosen (or who the testator or testatrix did not even know). Additionally, state intestacy laws only recognize relatives, so close friends or charities that the deceased favored do not receive anything. If no relatives are found, the estate may go to the government in its entirety. Intestacy may also pose a heavy tax burden on estate assets. People who are made aware of the consequences of intestacy generally prefer to leave instructions rather than subject their survivors and property to mandated division.
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