Last Will And Testament: The Cornerstone Of Your Estate Plan
Your last will and testament is the legal document in which you spell out where you want your probate assets to go whenever you pass away. Additionally, you nominate a person to be the executor of the will and name preferred guardians for any minor or developmentally disabled children you have. When you contact Legacy Law Firm, LLC, we can help you create a clear and thorough will as part of your larger estate plan.
What Does A Will Do?
A will dictates how your probate assets will be distributed at the time of your death. In short, probate assets are those that you own when you pass away which will not get to an heir or beneficiary through some other legal means. For example, life insurance proceeds typically avoid probate. When you pass away, the beneficiary named receives the death benefit after completing the proper forms. No probate is required as long as a valid beneficiary exists.
Other benefits a will can provide include:
- Nominating a guardian for your minor child or anyone else you have guardianship over
- Nominating an executor for your estate
- Modifying or supplementing the default rules to make probate cheaper, easier, simpler and quicker. For example, you can waive the need for your executor to obtain a probate bond.
- Making gifts to church, charity or other persons who would not normally receive an inheritance from you (if desired)
The No. 1 misconception people make is that they think a will avoids probate court proceedings. Unfortunately, that is not true.
What Are The Limitations Of A Will?
Using only a will to dispose of all your assets is often disfavored for several reasons.
Wills Do Not Avoid Probate
Probate can be complex and expensive, can take a long time, and is all public record. In order to simplify things for your heirs, you may wish to seek out alternatives to a traditional will to minimize or avoid probate. Most commonly, this is accomplished with the use of a trust.
The Original Document Is Required
The original will is required when applying to open up a probate estate. That means you need to make sure the will is safe and secure. Moreover, your heirs will need to know where the document is and how to access the paperwork. If a will is disputed or cannot be found, it can lead to protracted and expensive legal proceedings.
You Have Limited Control Over Terms Of Inheritance
While a will allows you to specify where your inheritance will go, you are not able to go any further. You cannot specify when, where, how, use or anything else. More poignantly, if your heirs have issues in their personal life that would mean the inheritance would cause problems or be taken by another, a traditional will cannot address that.
Common problems we see arise are debts, divorce, money management issues, lawsuits, nursing homes, or any needs-based assistance program. If these are not accounted for in another way in your estate plan, it can mean any inheritance you want to leave your heirs could be taken by another person, or cause them to lose eligibility for benefits they are currently receiving. While you can seek to establish a “testamentary trust” in your will, that means the probate court is involved in the process for an extended period of time. The costs of this can quickly outweigh the benefits in many cases.