How Do I Create a Will?
Creating a Will with the help of a Wills lawyer like Vince Taormina will help protect your assets for your family.
A Last Will and Testament, more commonly known as a Will, is a written and official legal document outlining both who will receive your assets and who will manage your estate at your death. Although no one wants to think about their own mortality (including myself), writing a Will is an important step in developing an estate plan. While a Revocable Living Trust may be the preferred vehicle for managing and planning one’s estate after death, a Will is another important tool for minimizing family disputes and disagreements about your property after you are gone. It is also helpful in that it avoids the state from making important and necessary decisions for you. Here are some important items to consider when writing a Will.
- Legal Terms and Your Will
When you begin the estate planning process with the help of an estate planning attorney, like Vince Taormina of The Taormina Firm, words that would otherwise be unfamiliar to you become apart of your overall vocabulary because Vince believes in educating each of his clients to ensure they have an accurate and concrete understanding of the operation of their estate planning documents. For those simply interested in learning more about estate planning generally, however, here are some common words and definitions which are most often found in a Will:
- Beneficiary: Someone named in a Will or other estate planning document who will inherit money or property after the death of the Testator (see below).
- Bequeath: To leave property to another person upon your death.
- Decedent: The person who dies.
- Executor/Personal Representative: The person who has been appointed by a court to manage the affairs of the Decedent’s estate.
- Intangible Property: Assets that cannot be grasped, such as part ownership in a business or stocks.
- Personal Property: All types of assets except for Real Property and Intangible Property.
- Probate: The court sanctioned process for validating a Will and transferring the Decedent’s property to his or her beneficiaries.
- Real Property: Real estate, land and things which are permanently attached to the land, such as a house.
- Testator: The person who wrote and signed the Will.
- Components of a Will
Every Will must be executed correctly, or they will not be considered valid under Missouri law. RSMo. § 474.320 outlines the requirements for a valid Will: "Every will shall be in writing, signed by the testator, or by some person, by his direction, in his presence; and shall be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator."
When a person dies, the Will must go through Probate. The first thing that happens in Probate is the court determines the validity of the Will. A Will can be self-proving. This means that the witnesses and the Testator may sign a notarized affidavit stating that the Will execution met the formalities. If, however, no affidavit is signed, then the witnesses to the Will must testify before the court as to the Will’s validity. This is obviously not preferred as witnesses go missing or die.
As far as the components of the Will go, nearly anything can be included in the Will, including specific property dispositions, tax elections that the Personal Representative can make, and powers of the Personal Representative. The Will can even include a Testamentary Trust provision for minor children. This Testamentary Trust only comes into effect at the death of the Testator. It does not affect the Testator’s current interest in the property. Here are a few other common components explained in detail:
Names of Personal Representative
A Will must include the name of the person who will be in charge of managing the Testator’s estate. This person is sometimes known as the “Executor,” but I prefer to call this person the Personal Representative. The Personal Representative executes the wishes of the Testator as provided by the Will. This individual is also in charge of settling up the estate, paying off any debts, taxes, or other claims made against the estate, and distributing assets to the beneficiaries of the estate.
If the Personal Representative is not named in the Will, a court will appoint an appropriate Personal Representative of the estate. This is not preferred because it takes control away from you, the Testator, and places it in the hand of a third-party court. When picking your Personal Representative, you should choose someone whom you know to be responsible and capable of quickly, efficiently, and fairly settling your estate.
Distribution of Assets and Property
A Will also announces who will inherit assets, real estate, and personal property. This is usually done by splitting the assets in equals percentage or fractional shares between the Testator’s beneficiaries. Your estate may include large items such as boats and houses, as well as small, sentimental items like china and jewelry. Specifically designating a percentage or fractional share of your estate to specific beneficiaries will make it clear to the court your intentions as to the splitting of your assets in the event that one of your items of property fails to pass through Nonprobate Transfer.
When Probate is opened, your property will be placed in a separate estate trust. From there, your creditors will be paid, as well as any other claims against your estate, such as taxes. After everyone is paid off, then the Personal Representative will distribute all of your assets to the correct beneficiaries. You can even specifically designate specific items of property to beneficiaries on a separate list so long as that list is “incorporated” into the Will.
Depending on how you write your Will—and this is why it is important to work with an estate planning attorney like Vince Taormina of The Taormina Firm—you may provide for independent administration or judicial administration. Independent administration allows your Personal Representative to settle your estate with little interference from the court in charge of Probating your Will. Judicial administration, on the other hand, requires the court to approve of every single decision that your Personal Representative makes. This is not preferred because it is costly and time-consuming. Talk with an experienced estate planning attorney to understand the difference and make the right determination for you and your family.
Appointment of Guardians
A Will is also a great way to declare who will become the guardian of your minor children after your death. If you die without a Will, the court will appoint your children’s guardian for you. This is not preferred because it takes control out of your hands and leaves your children with someone whom you might not otherwise desire.
If, however, you specifically appoint someone under the terms of your Will to serve as guardian of your children, the court must comply with your direction. You do not need permission before appointing someone as guardian, but not everyone is suited for the role. So, you should consider including more than one person as a choice of guardian, and you should make sure that you have conversations with those people so that they are not surprised.
There are dire consequences for dying without a Will. If you are in the beginning stages of estate planning, an experienced attorney, like Vince Taormina of The Taormina Firm, can help you navigate the complex process through clarifying examples.
Visiting with a qualified estate planning attorney can ensure that your wishes regarding your property and assets are honored. Additionally, the attorney can advise you regarding other types of estate planning documents, such as a Revocable Living Trust, which may better suit your needs. For more information, or for a free consultation with estate planning attorney Vince Taormina, please contact The Taormina Firm today.