You have likely heard that if you do nothing else to take care of your legal affairs, you should write a will, and it’s pretty good advice. If you don't make a will before your death, state law will determine who gets your property and a judge may decide who will raise your children.
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What is a Will?
As a way of general information, let’s review what a Will is. Most estate plans contain a Will document, and are often referred to as a “Simple Wills.” A Will document is a foundational part to almost everyone’s estate plan, and provides written authority as to the disposition of your assets, and perhaps who you wish to take care of your children. Every Will should have a person designated as a “personal representative” (or may be called an “Executor” depending upon the state where you live) that you wish take care of paying your debts and making sure that your wishes are carried out.
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Can a I use a Simple Will?
What makes a simple Will “simple”? The term “simple” has nothing to do with the document not being complex – most simple Wills are quite complex in their construction, and are very structured documents that comply with the formalities of the state where the person resides. Basically, the term “simple” means that the Will contains no trust provisions (we’ll discuss trusts in the next several posts). A simple Will makes an outright provision for passing the asset directly to the beneficiary without having it administered for their benefit by someone else (called a Trustee).
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What if I have minor children?
If you have children that are under the age of 18, then you most likely will not be able to use a simple Will. You will need to consider some type of a trust document as part of your estate plan to ensure that your assets are managed for the benefit of your children. However, if you are under age 50 and don't expect to leave assets valuable enough to be subject to Federal estate taxes, you can probably get by with only a basic will. But as you grow older and acquire more property, you may want to engage in more sophisticated planning.
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What do I do with my Tangilble Pesonal Property?
For tangible property, such as household furnishings, art work or jewelry, there is no title or “deed” of ownership so a specific designation in either made by a referenced list in the Will or specific bequest within the Will is necessary to designate who is to receive the property. You may have heard that "possession is 9/10th's of the law" and there is some merit to this perspective. Unless someone has written evidence to the contrary, it is generally presumed that if a person has possession of an article in their routine place of work or home, the article belongs to the person. You should make it clear in your Will what you wish to happen to these types of Tangible Personal Property.
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If I name a Beneficiary in my Will, can they make a claim or mortgage the property I intend to leave them?
Any potential beneficiary has NO interests in a person’s property prior to death. In legal terms, it’s considered to be a “mere expectancy” and has no legal bearing and the property rights of the current owner. If the property is sold, destroyed, or lost, the named beneficiary has no rights for claim. Also, it is entirely possible that the beneficiary could pre-decease the person who made the Will . Depending upon how the Will is drafted, the heirs of the beneficiary may or may not have a right to later claim property in the beneficiary’s name.
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