What is a will?

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A will is a written document that allows you to designate:

 

• who will receive your probate estate after you die;

• who will raise your children if you and your spouse die while they are still minors See: Naming a Guardian for Your Minor Children;

• whether your beneficiaries receive their inheritance outright or in a trust; and

• who will serve as your executor – that is, the person who will pay your bills and taxes and distribute the balance of your estate to your beneficiaries.

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What if I die without a will?

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If you die without a will, state law will determine the distribution of your estate. This is known as the law of intestacy. Through these laws, each state, in effect, draws your will for you – determines “who gets what” – according to what seems most equitable for the greatest number of its citizens. The problem with these laws is they are designed for general application and rarely suit individual circumstances. Preparing your own will assures that your property will go to the people you choose.

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What types of property pass to your beneficiaries through a will?

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A will can only control the disposition of property that falls within the probate estate. Your probate estate includes all your property that will pass through probate. Generally, this means all property you own at your death but does not include:
 

• Joint Tenancy with Right of Survivorship (JTWROS) property.

• Tenancy by the Entirety property.

• Life Insurance policy death benefits payable to a designated beneficiary other than “estate of the insured."

• IRAs, 401(k)s, and other retirement plans payable to named beneficiaries.

• Payable-on-death (POD) Bank Accounts.

• Transfer-on-death (TOD) Securities Accounts.

• Property transferred to a Living Trust during your lifetime.

 
All of the above items are considered to be non-probate property and do not pass through your will.

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Can my will be challenged?

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Yes. A person can attempt to prove in court that:

 

• you were under duress or undue influence when making your will;

• you were incompetent or unable to understand the meaning of your will when writing it; or

• your will does not meet the legal requirements that make it valid.

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What is a trust created by a will?

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You can use your will to create a trust upon your death. The trust holds your property for another person's benefit. For example, a trust can hold property for your minor children until they become adults. You name a trustee to oversee the trust. The trustee can be either a trusted individual (a friend or relative) or a financial institution (a bank or trust company). A trust created in a will is called a testamentary trust.

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What is a revocable living trust?

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You can create a revocable living trust to control your property while you are alive. Your chosen trustee then would control your property after you die. Under this arrangement, you sign trust documents and transfer your property to the trust. Typically, as long as you are living, you are the sole trustee, with complete control over your property, and your property is treated the same for tax purposes as if you still owned it in your individual capacity.

 

An often cited advantage of a living trust is that property can pass to your beneficiaries after you die without going through probate. For more details see: Revocable Trusts.

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If I have a revocable living trust, do I still need a will?

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Yes. A will would be important for several reasons. You may have property that never got transferred to your trust while you were alive. You would need a will to transfer that property to your trust after your death. Or your estate might receive money after your death. For instance, if your death was the result of an accident, your estate may receive wrongful death benefits. Again, you would need a will to transfer this money to the trust. You would also need a will to name an executor and a guardian for your minor children.