FAQs: Last Will and Testament
Who needs a Will?
Everyone eighteen and over needs one because it does much more than say who gets your property, it makes vital decisions that will arise on your death or disability.
What does a Will do?
It disposes of your property when you die; it names the people who will raise your children; it names your guardian and conservator; it names your personal representative or executor; it may contain your funeral directions; and much more if properly written.
Where do I keep it?
We recommend that you keep the original with your other legal documents in your attorney’s fireproof safe. You are provided with copies to keep at home. This facilitates making informal changes to your document.
How do I choose a personal representative, guardians and conservators
With care. These jobs are not to taken be lightly, they involve significant time and effort. This is why we recommend choosing those you think are best suited to handle difficult situations. You should discuss these choices with the people you select and give them guidance about what you want them to do in a written Statement of Wishes.
Why write a Will if my heirs can easily contest it?
A carefully drafted Will may prevent heirs and potential heirs from contesting it by inserting an In Terrorem provision punishing anyone who contests the Will.
How long is the Will valid?
Until you revoke it. This may be done informally by tearing up the document or it may be done by executing a new Will and reciting that the new Will revokes the previous one. We recommend that all changes be done by the attorney to ensure that your changes accomplish what you intend.
Can I just write one myself?
Yes, if you follow these simple rules. The document must be signed, dated, and the material portions must be in your handwriting. Also if you fail to include everything that is in our Last Will and Testament, you will not be completely protected. But if you use this power in association with our Last Will and Testament you have the power to amend or change provisions informally while maintaining full protection with that which was not changed.
Does having a Will save me money?
Yes, because many of the decisions that arise on your death will be answered by the probate court if not answered by you ahead of time. Court proceedings take time and money, which means your heirs will receive less and have less respect for you.
What if I already have a Will but it was executed in another state?
The law is different in all 50 states. This means a Will that is valid in one state may not be valid in another. A carefully drafted Will is valid in all 50 states, but most Wills are not drafted this carefully. Ours is designed to work in all states.
Doesn’t the government already have a Will written for me?
Yes, in a sense. The each state’s law has a distribution plan for all those who die without a Will, but it probably is not the same as the plan you have in mind.
Do I need a Will if I have a revocable trust?
Yes. The Will you need is called a pour-over Will. It serves as a safety net for assets that are not in trust when you die, in which case the Will pours over these assets into your revocable trust.
If I’m not going to die soon, why have a Will, its only good when you die?
A Will also answers questions that arise upon your disability. In fact, you are more likely to become disabled than actually die in this world of medical miracles. Also, unexpected accidents or illnesses terminate lives early, which means you need a Will now.
If everything I own is community property, do I need a Will?
Yes. Anything held as community property is considered half owned by each spouse, this means each spouse has the right to control how their half of the community property is distributed at their death.
Is joint tenancy the same as a Will?
In a way. Property owned in joint tenancy passes to the surviving joint tenant(s) on the death of the other joint tenant. But there are significant differences. The property must go to the other joint tenant(s), even a Will cannot change this. Corporate accounts, bank accounts, stocks, bonds, and certain other property may be held in joint tenancy.
Should I pay the personal representative, guardian and conservators?
This is up to the probate court, since they will expend considerable time and effort in doing these jobs the court will compensate the personal representative’s efforts on your behalf, as well as compensate the attorney, accountant, appraisers, and other professionals who assisted the personal representative’s efforts on your behalf.
What if someone I name in the Will dies before me?
It depends on how you have designated their bequest in the Will. You have the right to give to a person per stirpes – which means their children, grand-children or other issue receives their bequest if they die before you. If you designate someone to receive per capita – this means that if they die, their children, grandchildren, or other issue receives nothing upon that designee’s death. If a bequest to a person fails under either scenario, what’s left may be designated to go to a “taker in default” or will pass to the general residuary estate.
For additional information, please call (602) 252-5110.
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