One of our rights is to decide who will get our property when we die. Everyone needs to have a Will for this purpose. The Will controls our probate property. Probate property is the property that a person owns in their name alone and where there is no beneficiary designation. Probate property also includes property owned with others as tenants in common. In Maryland and D.C., real estate, whether owned by one person or by more, will be probate property unless held in trust. Non-probate property is described below.
Formal requirements for Wills vary by state. Generally, the testator must be an adult of “sound mind,” meaning that the testator must be able to understand the full meaning of the document. Wills must be written. Some states allow a Will to be in the testator’s own handwriting, but a better and more enforceable option is to use a typed or pre-printed document. A testator must sign his or her own Will, unless he or she is unable to do so, in which case the testator must direct another person to sign the Will in the presence of witnesses, and the signature must be witnessed and/or notarized. A valid Will remains in force until revoked or superseded by a subsequent valid Will.
Some legal restrictions prevent a testator from giving full effect to his or her wishes. Some laws prohibit disinheritance of spouses or dependent children. A married person cannot completely disinherit a spouse without the spouse’s consent, usually in a pre-nuptial agreement. In most jurisdictions, a surviving spouse has a right of election, which allows the spouse to take a legally-determined percentage (up to one-half) of the estate when he or she is dissatisfied with the Will. Non-dependent children may be disinherited, but this preference should be clearly stated in the Will in order to avoid confusion and possible legal challenges.
Some property may not be conveyed by Will. Property owned in joint tenancy may only go to the surviving joint tenant. Also, pensions, bank accounts, insurance policies and similar contracts that name a beneficiary must go to the named party.
A “simple” Will means that the person is leaving their property to their spouse and then equally and outright to their children. If the person is not married, “simple” means that the person is leaving their property outright and equally to their children. Many Wills are not simple, involving unequal distributions or the creation of trusts for children, for loved ones, or for tax and asset protection.
The Will may not control other types of property. For instance, Individual Retirement Accounts, annuities, and life insurance are typically controlled by a beneficiary designation. If a person designates a beneficiary and the beneficiary survives, the IRA or the life insurance proceeds will go to the beneficiary named, and a Will has no control of the non-probate property. Husbands and wives frequently set up accounts as joint tenants with the right of survivorship (JTWROS). With JTWROS accounts, if one of the tenants dies, the account belongs to the surviving co-tenant. A Will has no function with JTWROS accounts or beneficiary designations, assuming the joint owner or the named beneficiary survives the person.
A Will usually identifies a personal representative to perform the specific wishes of the testator after he or she passes on. The personal representative need not be a relative, although testators typically choose a family member or close friend, as well as an alternate choice. The selected representative should be advised of his or her responsibilities before the testator dies, in order to ensure that he or she is willing to undertake these duties. The personal representative consolidates and manages the testator’s assets, collects any debts owed to the testator at death, sells property necessary to pay estate taxes or expenses, and files all the required court and tax documents for the estate.
Choosing a Guardian
Testators who have minor or dependent children may use a will to name a guardian to care for their children if there is no surviving parent to do so. If a will does not name a guardian, a court may appoint someone who is not necessarily the person whom the testator would have chosen. Again, a testator usually selects a family member or friend to perform this function, and often names an alternate. Potential guardians should know they have been selected, and should fully understand what may be required of them. The choice of guardian usually affects other will provisions, because the testator may want to provide financial support to the guardian in raising surviving children.