Your will is the keystone of your estate plan. It spells out how your assets will be distributed and how your dependents will be cared for after you die. If a will is properly prepared, witnessed, and signed, it ensures that your wishes regarding these matters will be carried out.
What You Should Know
You can use your will to:
- Identify who will inherit your estate. Be aware that your surviving spouse has a legal right to inherit a portion of your property. Normally, you cannot do away with this right in your will.
- Distribute your property. If you establish what is called a "testamentary trust," your assets will automatically be distributed to the people you specify. Otherwise, your property will be distributed under the supervision of a Probate Court.
- Name guardians for your minor children. You will need to appoint a guardian to care for children who are younger than 18. You also should appoint a guardian for any children who will be unable to care for themselves in adulthood. A guardian will raise your children until they reach maturity. If your children are young, consider naming alternate guardians who can step in if your primary guardian dies or becomes disabled.
- Create a trust if any minors will be inheriting your assets. This trust specifies the age at which the child will receive his or her inheritance. It also appoints a trustee to manage that inheritance until the child takes possession.
- Choose an "executor." The executor will manage and settle your probate estate according to your instructions. Make certain the person you choose as your executor is both willing and able to serve. It is sometimes wise to designate two executors who can work together to settle your affairs. One executor could be an individual, like a family member or close friend. The other could be a bank or an attorney with legal and financial expertise.
If You Don't Have a Will
If you die without a will (called "intestate") the Probate Court will appoint an administrator to oversee and manage your estate. The administrator's duties can include distributing your assets and naming guardians for your children. Be aware that the administrator is guided by local laws, not your wishes, when he or she makes decisions about your estate.
The court may require that the administrator be bonded to ensure that he or she properly performs the required duties. Your estate will pay the bonding fee, the administrator's fees, and other legal fees.
Don't Do It Yourself
Don't be tempted to write your own will. To be valid, a will must comply strictly with your state law. That law might require that a will contain specific language, be signed in a particular way, and have a certain number of witnesses.
Only about half the states recognize "homemade" wills. Even in these states, your homemade will may not stand up in court if it contains language that could be easily misunderstood. If a disgruntled family member attacks your homemade will in court, he or she could have the entire document declared invalid. If this happens, the state would distribute your property as if you did not have a will.
For More Information
The AARP publication "A Consumer's Guide to Living Trusts and Wills (D14535)" describes how wills, probate, and revocable living trusts work. It can help you decide which document is right for you. This publication is not a do-it-yourself manual. If you think you need a will or living trust, talk with an attorney who has experience in estate planning. For one free copy of the booklet, send an e-mail to firstname.lastname@example.org. Include yourname, mailing address, the publication title, and the publication number (D14535).
Consumer Information Center
Federal Consumer Information Center in Pueblo, Colorado offers several publication about estate planning. These brochures can be read on line:
- "Being an Executor"
- "Making a Will"
- "Planning Your Estate"