FREQUENTLY ASKED QUESTIONS REGARDING WILLS, PART 1

Wills are important regardless of estate size if you want control over how your property will be distributed.

Q: WHY DO I NEED A WILL?

A. Every adult should have a will regardless of his or her financial net worth. If you die without a will, your property will be distributed according to the intestate laws of your state. Your property will be disbursed to your heirs and family members pursuant to the rules outlined in a statute, which may not necessarily be what you had intended. Thus, having a will ensures that your personal assets and belongings will go to family members, individuals, or charitable organizations you specifically designate to receive your property. Furthermore, if you have minor children, your will can include provisions to address who will care for and become the legal guardian of your children after your death.

Q: CAN I MAKE A HANDWRITTEN WILL?

A. The short answer to this question is, yes. Each state has different requirements pertaining to what is considered to be a valid will. So long as the requirements are met, a will will be considered valid even if it is handwritten. How- ever, the safer practice is to have your attorney prepare a printed will that is then executed according to your state’s requirements. You can be sure that a professionally drafted will disposes of your property in the way you intended and that it will be accepted by a probate court. A handwritten will may be more vulnerable to challenges.

Q: WHAT ARE THE REQUIREMENTS FOR A LEGAL WILL?

A. Each state has its own statute outlining what is needed for a legal will. However, in general a will is considered valid, regardless if it is a handwritten or computer generated document, so long as the following conditions are met:

1. The individual writing the will is of legal age;

2. The individual is of a sound mind, or has testamentary capacity. Essentially this means that a person understands that he or she is making a will and further understands the nature and extent of his or her estate and that he or she is disposing his or her assets upon death;

3. The individual’s intention is to make a will to dispose of his or her property;

4. The individual voluntarily signed the will, and was not under duress to do so;

5. The will properly disposed of the individual’s property; and

6. The will was signed, and dated in front of two disinterested witnesses. A disinterested witness is not listed in the will as a beneficiary. The witnesses also need to sign the will.

Q: WHAT IS THE DIFFERENCE BETWEEN A WILL AND A LIVING WILL?

A. A will is a document that allows individuals to specify how they would like their estate to be handled after their death. A living will on the other hand, is a document that allows individuals to state their wishes pertaining to end of life decisions if they are no longer able to make those decisions themselves.

Q: WHO CAN MAKE A WILL?

A. Any individual can make a will so long as he or she is of legal age (in most states 18 years of age) and is mentally competent. In other words, a person needs to know and understand that he or she is executing a will and making provisions to distribute his or her property to designated beneficiaries after his or her death.

Q: DO I HAVE TO HAVE A CERTAIN AMOUNT IN ASSETS TO MAKE A WILL?

A. No. Anyone can make a will (so long as they are of legal age and mentally competent.) The size of a person’s estate is not a factor in who is eligible to make a will.

Q: WHAT PROPERTY PASSES UNDER A WILL AND WHAT PROPERTY DOES NOT?

A. Any property or assets that are titled in your name may pass under your will. Also, property that is titled in your name and with another person as “tenants in common” will pass under your will. Tenants in common is a type of ownership that allows each person to leave his or her ownership interest to specified beneficiaries in his or her will, as opposed to the other co-owner. Assets that cannot be conveyed to others through a will are assets that “pass over” or “pass outside” of your will. Depending on the type of the asset it may pass directly to beneficiaries outside of the will. Some examples of these types of assets are:

• Property owned as joint tenants (this property passes directly to the surviving co-owner and can include real estate, vehicles, and bank accounts);

• Life insurance proceeds; retirement accounts, pension plans or IRA proceeds; some banking and investment accounts (these assets pass in accordance with beneficiary designations );

• Any assets placed in a living trust (these assets pass under the terms of the trust) ; and

• Personal property items of small value (typically these are divided in accordance with a personal property memorandum attached to your will or by agreement among your survivors or in accordance with your wishes as stated during your life).

Q: WHAT IS AN EXECUTOR, AND WHAT DOES HE OR SHE DO?

A. An executor is the person you choose in your will to handle the administration of your estate. An executor is sometimes referred to as a personal representative. His or her job is to carry out your wishes as specified in your will. Additionally, an executor’s responsibilities include processing the will through probate, distributing the assets of your will to your designated beneficiaries, as well as handling your overall estate. Specifically, this entails such responsibilities as making burial or funeral arrangements; paying off debts and taxes owed by your estate, liquidating assets, and even temporarily running a business.

Q: WHOM SHOULD I CHOOSE AS MY EXECUTOR?

A. You should appoint as your executor someone that you trust and who is capable of serving. This can include a family member or close friend. However, you should keep in mind that those individuals may be grieving, so you should appoint someone whom you can trust to handle your matters during a difficult time. Common choices for executors are spouses; siblings, adult children, or close friends. You may not name a minor or a person who has been convicted of a felony to serve as executor of your will. Some states may have additional limitations or requirements if you choose someone who is out of state to serve as your executor. Typically, your attorney will suggest that you name an alternate person to serve as executor in the event that the first person you name is unable or unwilling to serve.