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Functions of a will

Posted by Andrew Chan  April 29, 2010 02:00 PM

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Many know that it is important to have a will but there is usually a lot of confusion about what wills can and cannot do. A will generally provides a person with an opportunity to control how his or her property and assets will be passed upon their death. Without a will, the decedent's property and assets will pass according to the state's laws of intestacy. The intestacy laws that apply are usually determined based on where the decedent resided and/or where the property/asset is located.

A will can generally be used to:
  • Pass property/assets to heirs in a manner that differs from those stated in the state's intestacy law;
  • Pass property/assets to those who would not normally inherit it under the state's intestacy laws;
  • Prevent a person (other than a surviving spouse or minor child) who would normally inherit property under the state intestacy laws from inheriting it;
  • Name a personal representative for the estate;
  • Nominate a guardian for minor children;
  • Name a custodian or guardian to hold or manage the assets of their minor children;
  • Provide instructions on how to pass property in the event that a beneficiary child predeceases the decedent; and
  • Establish a trust upon your death such as a Bypass Trust or Special Needs Trust.
A will cannot be used to avoid probate or to distribute non-probate assets - such as life insurance policies and IRA accounts. In addition, a will cannot be used to disinherit a surviving spouse if he or she is entitled to a share of the estate based on the state's intestacy laws.

Regardless of the size of your estate, I generally recommend that every adult have a will so they can control the passing of their property. If you have minor children, it is even more important to have a will so you can nominate a guardian for your children.
This blog is not written or edited by Boston.com or the Boston Globe.
The author is solely responsible for the content.

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