What is a Will and When Do I Use It?
One of the greatest gifts you can give your family is a prepared estate plan. This provides your family with clear instructions, authority, and certainty of your wishes. When considering estate planning, you might wonder, “What is a will?” A typical estate plan includes various documents, not just a will. These might include a durable financial power of attorney, a healthcare power of attorney, a will, and a trust. Each estate plan is tailored to your specific needs and the size of your estate. An experienced estate planning attorney can ensure you have everything in place and are using the correct documents.
What Your Will Should Include
If you have a Will, it should do the following:
1. Designate and appoint an executor
(Personal Representative in Arizona). The executor’s job is to manage the assets of the estate until distribution and then make the distribution to the beneficiaries.
2. Designate a guardian for your minor children.
Your will is where you can outline your preference for who should care for your minor children if you pass away. If you have kids, preparing a will is one of the best things you can do. It ensures that your wishes are carried out and sets up a system for your children to receive money.
3. Distribute tangible personal property.
Tangible personal property includes home furnishings, clothing, jewelry, artwork, vehicles, and any other items you can touch. Typically, it’s common in a will to separate tangible personal property from other assets like bank accounts or your home. To achieve this, we use a list that you can update at any time without needing to return to the attorney for a codicil or will change. This flexibility is a crucial aspect of an estate plan and, consequently, a key reason to have your estate plan prepared by an attorney.
4. Distribute the remainder of the estate.
A will is one of the only places to designate where your belongings go upon your death. All assets that are in your name, such as your home, your bank accounts, and your investment accounts, are part of your estate and are controlled by the will. If you do not have a will, the default law will apply without any of your input. But with a will, you can choose who receives your estate and in what percentage or amount.
Understanding the Realities of Probate
Unfortunately, many families come into our office with this story:
Dad told me he had everything lined up for when he passed away. He said it would be very simple, and I would be able to get everything without needing to do anything. He also said that I won’t have to worry about my sister knowing about any of this.
If Dad only had a will, it won’t be as easy as the child thought. What most people don’t understand about a will, is that it simply outlines your wishes in a document. A will contains significant potential, but in and of itself, it doesn’t have any power. A will only gains power if it goes through probate.
The Role of Probate Court
If you believe you have someone’s will and you are the person who is designated executor in the will, you can file it with the probate court. The court, in return, will give you a document that then gives you the authority to collect the assets of the estate and distribute it to the beneficiaries.
One of the reasons we have the probate court is to ensure that the correct will is filed, and the correct person is given the role of executor. Maybe you have a will but find out that a more recent will was prepared. The newer will “revokes” any other wills. The probate court can evaluate which will is the correct one to administer.
Another reason for the probate process is that anyone who is an heir or beneficiary of the person who passed away needs to be told about the probate. Either before the appointment or after the appointment, if you are an heir or beneficiary of an estate, you will receive a copy of the will and various other documents. This gives you a chance to object to the executor’s appointment or the will itself. Maybe you have a newer will and didn’t realize that a family member was proceeding with an older will.
Tools to Avoid Probate
You can use many tools to avoid probate, including beneficiary designations, joint ownership, or a trust. However, if a family member has passed away and you’re trying to collect an asset but need court documents, you’ll need to probate the will. At this point, you might ask, “What is a will?” Dana Whiting Law has the answers. We handle probate administration with expertise. We prepare the documents to get you appointed, send out the necessary paperwork to heirs, beneficiaries, and creditors, help you collect and manage assets, and finally, ensure the proper distribution to beneficiaries.
Our goal is to efficiently administer the estate while ensuring you follow the law and stay protected as the executor. If you are an executor or recently lost a family member, call our office to set up a consultation with one of our experienced probate attorneys to see how we can assist you.