EXPLANATION OF

 

Last Will

 

and


Testaments

 

 

What is a Simple Will? A Simple Will allows you to give property you own or have an interest in to anyone you have chosen upon your death. Further, it allows you to select an Personal Representative for your estate; and it provides you with the opportunity to select a guardian for your children. It is your own personal Will and is not a Joint Will. Therefore, if you are married, your spouse should also have an individual Will. It does not provide estate planning for tax purposes.

 

Overview: A Will provides for the orderly distribution of your property upon your death. Not all property can be disposed of by a Will. For example, property which you own jointly with another person with right of survivorship, or insurance proceeds payable to a named beneficiary other than the decedent's estate passes by operation of law.

 

Generally, you may give your property to any person(s) or organization(s) you wish. However, according to state law, your surviving spouse is entitled to a minimum share of your estate, approximately one-third of the net estate if you are survived by more than one child or grandchild and approximately one-half of the net estate in all other instances. If you do not make sufficient provisions in your Will and/or the non-probate assets received by your surviving spouse are less than this minimum, your surviving spouse may make an election against the Will and receive the minimum amount.

 

Burial: Instructions regarding your burial cannot be provided for in your Simple Will since most Wills are not read until after burial. If special arrangements are required, your heirs should be given instructions according to your wishes while you are alive.

 

Insurance Policies and Retirement Plans: Usually insurance policies and retirement plans name specific Beneficiaries and on your death the money received from them goes to the Beneficiaries named in the policies and plans. You cannot change these Beneficiaries by your Will, but should contact the insurance company or your employer if you wish to change the Beneficiaries named. If you designate the Beneficiary on your insurance policy as "my estate", the proceeds will be put into your estate and distributed according to your Will.

 

Joint Tenancy: If you hold property jointly with another person with right of survivorship, (for example, if you and your spouse own your home jointly) you may not give this property through your Will. However, if all owners die at the same time or all other joint owners died before you, your interest in the property would be distributed according to your Will.

 

Payments of Debts and Taxes Owing on Property That You Give Away By Your Will: Your Will provides that all of your property is given to your Beneficiary (ies). together with any mortgage or debt on that property.

 

Children: You should state the names of ALL your natural or adopted children in your Will. This is true whether they are born in or out of wedlock or living or dead at the time you execute your Will. It is also true whether or not you recognize them as your children and whether or not you wish to leave them a gift. FAILURE TO DO SO can result in ALL or a substantial portion of your estate being claimed by either an unmentioned child or his or her heirs.

 

If you do not name a child in your Will, the child might still inherit all or a portion of your estate if all of the beneficiaries and alternate beneficiaries predecease you. However, if you specifically disinherit a child (or any relative) that child (or relative) may never inherit any portion of your estate.

 

Stepchildren are not treated by law in the same manner as natural or adopted children. If you wish to make a Specific Gift to a stepchild, or to have a stepchild treated the same as your natural or adopted children, this must be designated.

 

Since you might have additional natural or adopted children in the future, the Simple Will includes all children born to you or adopted by you after the date of the Will.

 

Minor children: If you have minor children (under the age of 18), you should appoint a Guardian and Conservator for them in the event that both you and your spouse die before the children reach the age of 18. If one parent dies, children automatically become the responsibility of the other parent. If you desire, you may designate Co-Guardians and Co-Conservators in the event a named Guardian or Conservator cannot serve.  You may require whomever you designate to post a bond.

 

When you do not require your nominee for Conservator to be bonded, there will be an express waiver of the bond requirement in the Will. If you do not want to waive the bond requirement, the Will makes no reference to a bond and the matter will be determined by the Court. Normally, the Court requires a bond in every case unless there are unusual circumstances that would dictate a waiver of the bond.

 

If you are giving property to minors and do not wish such individuals to obtain unrestricted use of such assets upon their attainment of majority, you should personally consult an attorney to prepare your Will so that it will contain a Simple Trust.

 

Beneficiaries: If you do not wish to leave your entire estate to your spouse and/or in the alternative your natural or adopted children, we suggest that your estate be divided into percentages, and that it be given to your Beneficiaries in that way. For example: "100% to my wife Jane" or "75% to my wife Jane and 25% to my son" or 60% to my wife Jane and 20% to each of my children, John Robert Doe and June Doe", or "to my children, John Robert Doe and June Ann Doe equally" (as used here "equally" means share and share alike) or 100% to the Charities of XYZ, Inc."

 

Specific Gifts: If you wish to leave "Specific Gifts" it is important to give a detailed description of the gift, for example: "The sum of $5,000.00. "My rare stamp collection". "My gold bracelet with Lily of the Valley."

 

Alternate Beneficiaries: In the event that you leave your property to one or more individuals, you should consider how you want the property to be distributed if one or more of those individuals should predecease you. For example, if you leave property to your children and one of the children predeceases you, the property can be distributed in one of two ways:

 

1.  The property can go to the remaining children. For example, if you have three (3) children and you leave property equally to them, then each child would take one-third of the property at your death. If one of the children predeceases you, the property would then be divided between the two (2) remaining children and each would take one-half. OR

 

2.  The part of the property that would have gone to the deceased child will go to that deceased child's children. Using the example in No.1 above, the two remaining children would each take one-third and the one-third that the deceased child would have received will be given to his or her children equally.

 

Personal Representatives

 

You should appoint a personal representative to administer your estate. Among other things, the personal representative assists the probate attorney by collecting and managing the assets, helping to prepare inventories and appraisals and distributing the estate to the persons named in the Will in accordance with your wishes. Therefore, you should select someone who is reliable, has integrity, does not have a conflict of interest, has business experience, and has knowledge of your affairs. Since the individual acting in this capacity will receive compensation from your estate for performing these tasks, many people name a person who is also an heir in the Will to serve, (e.g., a spouse). You may select a bank or trust institution, although they will only accept nominations of larger estates, usually over $100,000. If you do not select a representative, one will be appointed by the Court.

 

A personal representative must post a bond unless you state in your Will that he or she need not do so. The cost of the bond is an expense of your estate and can be expensive. If you do not require a bond, you are trusting the personal representative to perform his or her duties properly. You should use care in making your decision.

 

You should also name an alternate personal representative in case your primary choice becomes incapable of performing his or her fiduciary responsibilities.

 

Other Important Considerations: Keep in mind while constructing your Will that if you wish to give all of your property, or a very valuable specific bequest, to a person who is not "the natural object of your affection" (for example, to someone other than your spouse or children), then you should personally consult an attorney to prepare your Will. When a person uses his or her Will to give valuable gifts to friends or charities while his or her spouse or children are still living, the Will could be challenged.

 

Please note that the same advice applies if your age is very advanced, or your health is poor, or you are undergoing extensive medical treatment and taking large doses of prescription drugs.  It is always best to make your Will while you are in good health.

 

   
 
2013© Copyright Gunvordahl & Gunvordahl
  Site Map