What Do I Need to Create My Will
You need the full names and addresses of the individuals or entities that will get your assets when you die, and the individuals that will be responsible for distributing your assets.
A basic will typically leaves the entire estate to a spouse, or divided equally amongst all of the children. A basic will for an unmarried individual would typically leave everything equally to their children or equally to designated beneficiaries. If your estate plan involves second marriages, children from another marriage, disabled children, or estate tax implications, then your will is likely to be more than a “basic” will. Also, when the will includes specific gifts within the body of the will or distributions other than equal percentages, the will is no longer basic.
Do I Really Need a Will?
A Last Will and Testament, simply referred to as a “will”, is a fundamental part of every estate plan. Whether it is used or not. Depending on you circumstances, a will may be your primary estate document or a worthless piece of paper. Unfortunately, only your heirs will know that answer. A will is essentially written instructions to the probate court telling them who you want to handle your affairs and where you want the assets to go to after you die. If you have minor children, a will is essential for establishing guardianship over your kids.
Wills Do Not Avoid Probate
All of the assets that are in your name at the time you die will go through probate, with a few exceptions. Property owned jointly with a right of survivorship, or tenants by the entireties, pass automatically outside of probate. Otherwise, your house, cars, bank accounts, retirements accounts, and much more, could be part of your estate that goes through probate.
Dying Without one
If you die without a will, or a properly funded trust, you are considered to have died “intestate”. Meaning without a will. When you die without one, someone with an interest in your estate (spouse, child, sibling) must petition the probate court to open an “estate” and request to be appointed as the estate’s personal representative. The personal representative is then responsible for winding up the affairs and dividing up the estate amongst your heirs according to the probate statutes. Who gets what depends on your circumstances, such as whether you have kids and a wife who is the mother of all of those kids.
Do I Need a Will if I Have a Revocable Trust
A revocable trust is typically used to avoid the cost and delay associated with probate. Unfortunately, many revocable trusts aren’t properly funded and the assets are never actually moved into the trust. If the assets aren’t in the name of the trust when you die, then they will likely have to go through probate. For that reason, most attorneys will create a pour-over will at the time they are setting up the trust. A pour-over will designates the trust as the beneficiary. All assets that were not added to the trust before your death can be added after your death. Unfortunately, those assets will go through probate along with the cost and delays associated with probate.
A Will is Absolutely Necessary if You Have Minor Children
If you have minor children when you die, an estate will have to be opened to appoint guardians for those kids. The probate court is responsible for appointing the guardians and your will is your last chance to tell the court who you want to watch over your children. Although the court can appoint someone else if it feels it is in the best interests of your children. However, the probate court will most likely abide by your request. If you don’t have a will or don’t appoint guardians, your children could go to a relative you don’t want. Or worse, end up in foster care because no one stepped up.