What is a Will?
One of the most common and important pieces to an estate plan is the last will and testament. Most people, when asked about estate planning, immediately think of the will. However, this has also led to some of the most misinformation and misunderstanding of what a will does and, just as important, what a will does not do.
First, lets dig into what a will actually can do. A will controls any property that needs to go through the probate court. This is key so I will repeat: A will only controls what goes through probate. A will provides the distribution of any probate assets. It your chance to name who gets what property you have after your death.
In your will you also name a personal representative. This person is in charge of administering your estate and is often referred to as the executor. The primary responsibility for the personal representative are handling all of the assets of the estate including the hiring of attorneys and other professionals to assist in probate, filing of taxes, sales of property, and other tasks the personal representative must take on. When the probate process is finally complete, it is up to the personal representative to be sure that all distributions are made in accordance with the will.
The next, and most important aspect of a will, is that it provides who will be guardian over any minor children. If you have kids below the age of 18, this is your chance to have a say in who will take care of them if you are unable to. This decision is often the one parents struggle with the most, and for good reason. When determining who will raise your kids it is important that both parents are in agreement and that whomever is selected is someone that will have the ability to raise your kids as best they can.
Finally, when a will is properly drafted, it provides for some efficiency and cost-effectiveness when going through probate. A properly drafted will can ensure that the probate process is completed as efficiently as possible, by waiving certain restrictions and requirements.
Often I am asked, “what happens if I do not have a will?” The answer to that is simple: state law determines how your property will be divided, how your estate will be handled, who gets to handle your estate, and a judge will decide who gets to raise your children. If you want to have a say in the distribution of your assets, the handling of your property, and who can raise your children, you must have a valid will drafted.
If you want a say in who gets your property, who handles your estate, and most importantly, who will raise your kids, you must have a properly drafted will.