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Frequently Asked Questions About Wills, Living Wills and Powers of Attorney by: Sheri R. Abrams, Attorney at Law Frequently Asked Questions About Wills, Living Wills and Powers of Attorney WHAT DOES A WILL DO? The simplest way to ensure that your funds, property and personal effects will be distributed after your death according to your wishes is to prepare a will. A will is a legal document designating the transfer of your property and assets after you die. Usually, wills can be written by any person over the age of 18 who is mentally capable, commonly stated as 'being of sound mind and body.' WHO NEEDS A WILL? Although wills are simple to create, about half of all Americans die without one (or Intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to the laws of your state. Wills are not just for the rich; the amount of property you have is irrelevant. A will ensures that what assets you do have will be given to family members or other beneficiaries you designate. If you have no apparent heirs and die without a will, it's even possible the state may claim your estate. Having a will is especially important if you have young children because it gives you the opportunity to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children who may be someone you do not even know. WHAT ARE THE ELEMENTS OF A WILL? What you generally need to make a will: 1) Your name and place of residence; 2) Names and addresses of spouse, children and other beneficiaries, such as charities or friends; 3) Alternate beneficiaries, in the event a beneficiary dies before you do; 4) Name and address of an Executor/ Executrix to manage your estate; 5) Name and address of an alternative Executor/Executrix, in the event your first choice is unable or unwilling to act; 6) Name and address of a guardian for your minor children; 7) Name and address of an alternative guardian, in the event your first choice is unable or unwilling to act; 8) The age you wish your minor children to have control of their inheritance; 9) Any burial requests you may have (cremation, where you want to be buried, etc.); 10) Your signature; 11) Two Witnesses' signatures; and 12) Notarization. Two of the most important items included in your will are naming a guardian for minor children and naming an Executor/ Executrix. WHAT IS A GUARDIAN? In most cases, a surviving parent assumes the role of sole guardian. However, it's important to name a guardian for minor children in your will in case neither you nor your spouse is able and willing to act. The guardian you choose should be over 18 and willing to assume the responsibility. Talk to the person ahead of time about what you are asking. You can name a couple as co-guardians, but that may not be advisable. It's always possible the guardians may choose to go their separate ways at some later date, and, if so, a custody battle could ensue. If you do not name a guardian to care for your children, a judge will appoint one, and it may not be someone you would have chosen. WHAT IS A EXECUTOR/EXECUTRIX AND WHAT DO THEY DO? An Executor/Executrix is the person who oversees the distribution of your assets in accordance with your will. Most people choose their spouse, an adult child, a relative, or a friend to fulfill this duty. If no Executor/Executrix is named in a will, a Probate Judge will appoint one. Probate refers to the legal procedure for the orderly distribution of property in a person's estate. The Executor/Executrix files the will in probate court, where a Judge decides if the will is valid. If it is found to be valid, assets are distributed according to the will. If the will is found to be invalid, assets are distributed in accordance with state laws. Responsibilities usually undertaken by an Executor/Executrix include: --Paying valid creditors; --Paying taxes; --Notifying Social Security and other agencies and companies of your death; --Canceling credit cards, magazine subscriptions, etc.; and --Distributing assets according to the will. WHAT ABOUT UPDATING MY WILL? You'll probably need to update your will several times during the course of your life. For example, a change in marital status, the birth of a child or a move to a new state should all prompt a review of your will. You can update your will by amending it by way of a Codicil or by drawing up a new one. Generally, people choose to issue a new will that supersedes the old document. Be sure to destroy the old will after you sign a new one. WHAT ABOUT ESTATE TAXES? The property included in your will may be subject to taxation. In planning your will, take into account the following: ---Federal estate taxes will generally be due if the net taxable estate is worth more than $'1
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