A Will (also known as a “Last Will and Testament") is a legally-binding instrument that, in the event of death, directs property and the care and custody of minor children. A Will does not direct all property in a person’s estate while they are living, only the property that remains titled solely in the name of the deceased. For example, a Will does not direct property that is transferred to a beneficiary at death (as is usually the case with life insurance); a Will does not direct property or accounts that are held jointly and remain with the survivor (such as jointly held real estate or bank accounts); nor does a Will direct property that has been placed in a trust during the decedent’s lifetime.
Regarding the care and custody of minor children, a Will can propose a guardian. In most instances, a Guardianship Information Form or Letter of Intent Information Form is incorporated into the Will, thus giving the proposed guardian information regarding the minor children that includes medical and educational history, religious preference, special needs, recreational activities and other helpful information.
Furthermore, a Will makes arrangements for the payment of debts, taxes, expenses and costs, and elects a person to take the necessary legal steps to carry out the instructions put into the Will (referred to as a “Personal Representative" or “Executor/Executrix").
In order for a Will to function it must be given power by a court through a process referred to as probate. During the probate process, the Will is authenticated; creditors, fees, costs and taxes are paid; and the directions of the Will are followed. Probate can be costly and time consuming, thus an educated analysis of one’s estate should be completed to determine whether probate should and could be avoided. CAVEAT: consult an estate planning professional before changing ownership of property to avoid probate; the consequences of changing ownership could be unintended and detrimental without appropriate consideration.
Regardless of how complex or simple the estate, a Will is always included in an estate plan, whether it is used to dispose of someone’s entire estate, direct the care and custody of minor children or act as a safety-net for property that was accidentally not included in a trust or other arrangement. Rather than a simple form that can be purchased online or at an office supply store, a Will is a document that requires significant thought to include proper detailed instructions and avoid improper taxes and fees.
Estate Planning Attorney