Q: What is a Will?
A will is, in most cases, the cornerstone of your estate plan. This is a document that you prepare during your lifetime that states how you want your affairs handled and assets distributed after your passing. Some will can be very simple, while others quite complex. Wills must be written and executed as per the state's laws for it to be enforceable so care must always be taken to be sure that the will you are preparing complies with your state's law. Failure to do so could render the will unenforceable.
When you die with a valid will prepared, you are said to have died “Testate.” When you die with no valid will prepared, you are said to have died “Intestate.”
Your will can give explicit instructions how you want your possessions and assets to be distributed upon your death. You can give these items to family, other individuals or charity. Your will is a legally binding document and the person you chose to be your executor must follow your instructions exactly as they are written, unless you give your executor or someone else decision making powers for how some or all of your assets should be distributed.
If you have minor-aged children, your will can appoint a person or persons to be guardian of your children. If a guardian is not appointed at the time of death, your surviving family will have to seek help in a probate court to have a guardian appointed for your children. The person appointed may not be who you would have chosen to raise your children.
A will can also create a trust upon your death. This is known as a “Testamentary Trust.” In this situation, the will contains all of the language needed for the trustee to manage the testamentary trust upon your death. A primary example of where testamentary trusts are used is in the case of when minor children, or individuals with special needs may inherit all or some of a decedent's estate. Instead of giving the assets outright to that individual, a trust is formed and funded upon your death such that the trust provides the trustee with direction on how the assets are to be used for that person's benefit.
With some exceptions, you can also provide in your will explicit instructions that a particular person should not inherit a part of your estate. This is called “Disinheriting” someone.
During your lifetime, your will may be amended or terminated at any time provided you have the legal capacity to do so. If you wish to amend or terminate a will, you should speak to a lawyer as there are specific rules for how this may be done.
A will is not private after your death. It will be filed with the probate court in the county of which you resided upon your death. Further, a assets and property that passes must do so through a probate process. Depending upon the size of your probate estate, this may or may not require involving the probate court. You should seek legal advice on this issue.