Wills

It is a good practice to have your Will drawn by an experienced attorney and not a good practice to download a Will from the internet or write your own Will.  Many times, the language that you may use could be conflicting and that will require the Will to go before a court for interpretation.  Do It Yourself Will kits are really not a safe way to do estate planning. 

Wills nominate an executor but the Clerk of Court appoints the executor to act.  Wills need to have language that indicates if a named beneficiary is not living, how that asset will be directed to an alternate beneficiary.  Wills can even have a Testamentary Trust included in the Will for an adult child who is unable to handle a large sum of money at one time or to hold assets for a younger beneficiary until the beneficiary reaches the age selected by the client.  Wills dispose of both real estate and personal property that passes through the estate.  A few items are not covered by a Will and that would be where a person names a beneficiary to a certain monetary product.  That asset typically by-passes the Will and goes straight to the beneficiary.  Life insurance and retirement accounts have beneficiaries and normally do not pass through a Will.  However, if you fail to list an alternate beneficiary, sometime those assets are pushed through the estate because there is no living beneficiary to receive the asset.  Wills are usually the first document considered in the estate planning process.

Wills are signed, witnessed and notarized to become self-proving so that the witnesses never have to be located at the time of the client’s death.  Wills are normally are never recorded until after a person dies.

 In drafting a Will, attorneys will often ask the client whether there is a possibility that minors might receive an asset from their estate.  Even the possibility that a minor might receive an asset is a reason for placing language in a Will called a “Testamentary Trust” for the benefit of underaged children.  The client can determine the age of the minor beneficiary so that it is no longer held in trust once the beneficiary reaches the determined age.  The client also would name a trustee and an alternate trustee to manage the assets for the minor child until they reach the particular chosen age.  Most Testamentary Trust for younger beneficiaries will allow the trustee to have discretion (if the younger beneficiary has a special need that the trust can meet) to make an advancement of some of the funds prior to the beneficiary reaching the chosen age.  This is called a Testamentary Trust and does not exist until a person dies because it is only written into a Will.