What is a Will and do you really need one? This may sound basic, but it is a fundamental question that all of us, as responsible adults, should answer in our own minds. Unfortunately, death is a certainty that we all must face, and we never know when it will happen. It is therefore advisable to make plan for when that event occurs.
A will is a written legal document that establishes a person’s testamentary intent. It communicates a person’s wishes after death regarding his or her possessions and people. The person making the will is referred to as the testator.
Holographic will written on tractor fender – probated in Saskatchewan, Canada.
A “will” is also called a “last will” or a “last will and testament,” indicating this document is the current will or the one that is in effect, not any previous will the testator may have signed.
A basic will should contain at least 2 essential elements:
1. Appointments of persons or entities who will carry out your intentions
2. Testamentary plan of how your assets will be distributed
Appointments. The most important appointment in the will is the personal representative or executor. The title of this person is different depending on the State, and in Florida and many states, it is the personal representative. The title indicates this person’s role – i.e., to represent the personal wishes of the testator with respect to his or her estate. The personal representative is assigned the responsibility of carrying out the testator’s plan set forth in the will. This means filing the will with the court, being appointed by the probate court, probating or carrying out the intent of the will, and then closing the estate. So, for example, if the will indicates that the testator she wants $5,000 to go to her brother Billy Bob Jones, her personal representative will write a check out of the Estate account for $5,000 payable to Billy Bob Jones.
If the testator has minor children and no spouse to care for the minor children after death, it is very important that he or she appoint a guardian of those minor children. This is very important because without this appointment, the court will be required to step in and decide who will care for the minor children. This would also apply to adults who are incapacitated and unable to take care of themselves.
If there is a testamentary trust in the will, the the testator will also name a trustee in the will, but more on that in a future post.
Testamentary Plan. This is the second essential element of a basic will, and consists of the testator indicating what happens to his or her assets after death. So, for example, in the case of a husband and wife with 3 children, they would typically leave everything to each other in their respective wills, and if their spouse predeceased him or her, everything equally to their 3 children. This is a very simple and basic example. Every planning situation is unique. The testators should discuss their wishes in detail with their attorney before making a decision on their final plan.
That’s basically what a Will is. So why have one? Everyone should have a will so that the State laws of intestacy don’t step in and dictate who gets what. This is not “avoiding probate.” This is avoiding intestate succession. What’s that, you ask? Check out our next blog post to learn more about this important topic.
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