In our previous entry we discussed the various ways that we can give our property can pass to others outside the terms of a valid Will or even if there is no Will at all (intestacy). Once understood, you can next consider your testamentary wishes and how to best give them effect.
You must first realize that a Will may be only one element of an estate plan. It may be combined with a Health Care Proxy or Living Will, or it may be combined with a Power of Attorney, or it may be used in conjunction with a Living Trust. Each of these topics merit close consideration. For our purposes, we will limit ourselves to the basics. A Health Care Proxy and a Living Will are separate documents with a single purpose – to tell medical providers what forms of life-sustaining treatments you or your delegate choose to endure.
A Power of Attorney is a very powerful, even dangerous, instrument. It gives a third party the present authority to act in your place for your benefit. It is dangerous because human nature may tempt an otherwise close friend or relative to abuse the power granted to him or her under the Power of Attorney.
We will deal with these instruments in later entries. For now, let’s return to our topic at hand, do you need a Will? If you want your wealth to pass to beneficiaries of your own choosing, beneficiaries who are not members of you immediate family, then you need a Will. If the selection of a person to administer your estate is important to you, then yes you need a Will to select an executor or executors. If you desire to select guardians for a minor or disabled child, then a Will is necessary but not controlling (the court always has the duty to act in the best interests of such a disabled individual even if that clashes with your choice). Keep in mind that the mere act of signing a Will does not mean you are giving up those assets on the day you sign the document or that you can’t change your mind at a later time and execute a new Will. The Will takes effect only when the testator dies and when the court approves it.
A frequent question arises when a person asks if he or she needs an attorney to do a Will. The simple answer is no, there are means by which a person may create and execute his or her own Will. Forms of simple Wills are readily available on the internet. But a word of caution is I order. The rules for creating a valid Will vary from state to state and it is entirely possible that the money you may save in not retaining an experienced attorney to draft your Will may vanish when the Will you prepared on your own is defective or ambiguous. Then your executor and your beneficiaries will need the services of an attorney.
There are many ways of “avoiding probate” and we discussed several techniques in the earlier blog entry. But keep in mind that a disgruntled family member can make trouble for your desired beneficiaries whether the vehicle you choose to give your wealth to a loved is a Will, a trust, a jointly-owned asset, etc.
Finally, because this topic is so vast, see the attached preliminary checklist of the types of questions and considerations that you may have that will inform your choice of how to proceed with an estate plan.