I’ve heard on more than one occasion that having a will is important. However, I’m confused about what a will can and cannot do. Can you explain?
Having a will is important. A will generally provides a person with an opportunity to control how his or her property and assets will be passed upon his/her death. If you do not have a will when you die, your property and assets will generally pass according to the state’s laws of intestacy. The intestacy laws that apply to you are usually determined based on where you resided and/or where your 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.