What Is A Will?
A will is a document that describes a decedent’s final wishes. It is a legal document that describes how assets will be managed and distributed after death. It also names guardians for minor children and any needed special needs trusts. It is also referred to as a testament.
The Structure of a Will
The will is a fairly standard document in the sense that it has certain standard paragraphs in it. Some wills are more robust than others. Some wills include sections relating to closely held business, tax saving strategies and special needs trusts.
Whatever the specifics of the will, each has the following types of paragraphs:
Revocation of Prior Wills
This is the first paragraph of most wills. It is a revocation of prior wills. It says that I revoke all prior documents that were signed. It is critically important that this si the most current.y written will that has been drafted. It is critically important.
Don’t be surprised if your lawyer asks you if this is the most current will or if you did a diligent search. You will also be asked if there have been any trusts that have been drafted separate and apart from the will. A trust could be a document that has testamentary powers that have a binding statement of what happens to one’s property separate and apart from the will.
Family Members
The will talks about family members so you know who are the beneficiaries in the decedent’s words to understand the family situation.
Paying Debts and Expenses: The will can be silent on paying debts and expenses. When the will is silent there is usually state statuary law that controls these various topics. If the will says it should pass according to the terms of this will subject to a mortgage, you expect this to be in the paying of debts section. If this language in not in the will then you have to look to state law. If you are silent on the issue then the state will often decide.
Tangible Personal Property
Tangible personal property is things that you can touch and feel like jewelry or furniture. It will specifically state what items will go to which beneficiary. States have provisions for how this is detailed and managed. Most major disagreements are regarding the distribution of I tangible personal property. A good idea is to have a provision in the will that allows the executor to decide any disagreements.
The Residuary Disposition
This is the section of the will that says that everything else after paying off debts and personal property goes like this. It says I give my residuary estate to the following beneficiaries. In this section is where it is noted if any part of the will is to be managed by a trustee. It also states what happens if a beneficiary predeceases the descendant. for example, it might say that if the beneficiary is no longer alive, it could go to their children. Others may decide that it goes to the remaining siblings.
Powers the Executor has in Winding up the Affairs of the Decedent
This section would have provisions that inform the executor how they need to act in regards to assets and the beneficiaries.
Appointments
The appointments section of the will describes who is the executor and who is the alternate. There may also be a chain of people who act as trustees.
Payment of Taxes
The will concludes with the section on payment of taxes. Wills generally must have a provision on where taxes are paid from. If you don’t state it, it means that you must act according to the laws where the state is being executed.
Signature
The will must be signed in the decedent’s hand and must be witnessed. You also need a self-proving affidavit that signed by the witnesses that indicate that the decedent signed they were of sound mind at that time indicating that it is a valid will. The self-proving affidavit allows the courts to know that you should presume that the will is valid.
Questions About A Will, Probate or An Estate?
The probate, wills, and estates legal team at Gartenberg Howard is here to assist any Executor or family member with estate planning, wills or the probate process. Just give us a call at (201) 488-4644 or contact us using the form below.