A Will is a legal document that is used in probate to distribute your assets to your beneficiaries after you die.
It is also used to name a guardian and conservator to care for your minor child and manage any property that child inherits after you die.
Does a Will avoid probate?
No. In fact, a Will is specifically used for the purpose of distributing your property to your beneficiaries in probate.
When should I make a Will?
You need a Will if you have a minor child and want to choose a person or persons you want to be responsible for caring for your child on a day-to-day basis and making decisions as to your child’s education and medical care (the guardian).
You also need a Will if you have a minor child and want to choose a person or persons to be responsible for controlling and managing the money and property of your child (the conservator).
A Will is also sometimes used as a supplement to the use of beneficiary, transfer-on-death, and pay-on-death designations for property that you own in your name only.
A Will, commonly called a pour-over Will, is normally used if you have a revocable trust as part of your estate plan. While the revocable trust is used to manage and distribute your property for your beneficiaries, it must be funded to be effective. Any of your money and property that is not funded into the revocable trust will be distributed to the trust in probate.
What’s included in a Will?
A Will names your executor, also known as a personal representative, whose job it is file your Will with the probate court, collect all your probate assets, pay your debts and the expenses of administration, and distribute your remaining property to your beneficiaries.
A Will spells out the distribution of your property to your beneficiaries.
If you have a minor child, a Will:
- Names a guardian for your minor children, whose job it is to care for your child (known as the ward) on a day-to-day basis and make decisions as to your child’s education and medical care.
- Names a conservator for your minor children, whose job it is to control and manage the money and property of your child (known as the protectee).
What happens if I don’t have a Will?
If you have a minor child and are not survived by an adopted or natural parent of your child, it will be necessary to have a guardian appointed whose job it is to care for your child on a day-to-day basis and make decisions as to your child’s education and medical care.
If you don’t have a Will, it will be up to the probate court to pick a guardian from among those persons who volunteer to serve. Or, if no one volunteers to serve, the public administrator will act as guardian.
Depending on how you titled your property, it also may be necessary to have a conservator appointed whose job it is to control and manage the money and property of your child.
If you don’t have a Will, it will be up to the probate court to pick a conservator from among those persons who volunteer to serve. Or, if no one volunteers to serve, the public administrator will act as conservator.
If you owned any property in your name alone and did not name a valid beneficiary, transfer-on-death, or pay-on-death form, it will be necessary to open a probate estate for the purpose of distributing that property to your heirs.
Who should I name as Executor in my Will?
Your executor is a fiduciary. As a fiduciary, they must act in the best interest and manage your money and property for the benefit of your beneficiaries.
A fiduciary must be trustworthy, honest and act in good faith. There are four basic duties of a fiduciary. Your Executor must:
- Act only in the best interest of your beneficiaries and avoid self-dealing and conflicts of interest.
- Collect and manage the probate property carefully.
- Keep the probate property separate from theirs.
- Keep good records.
It is best if your executor is somebody who is experienced with handling financial matters. It is common for the agent named under your financial durable power of attorney to also be named as the executor/personal representative.
Where do I keep my Will?
Your original Will must be “presented” in probate to be effective. As a result, it is very important that your original signed Will be kept in a safe place such as a fireproof safe in your home or a safe deposit box.
It is equally important that your Executor know the location of your Will and how to access where it is stored.
This can be done using a form, sometimes known as a document locator or personal inventory, which lists out the location of important documents and the contact information for your professional advisors and the people you have named to act in your estate plan.