What Is A Will?
Last Will and Testament concept. Fountain pen, seal on desk. -GETTY
FORBES- Recently, I was asked “What is a Will?” Lawyers who deal with estate planning documents on a daily basis sometimes forget that terms that seem simple and straightforward to them are complex and confusing for most people. Here, therefore, is my explanation of what a Will is, and why you should have one.
A Will is a legal document which allows an individual to direct the disposition of both real and personal property at their death. To be a valid Will, with some very rare exceptions, it must be a written document which identifies the person making the Will (the Testator or Testatrix), that it is their Will and signed freely. Generally, the Will specifies the property owned by the Testator and to whom the property goes to at the Testator’s death; and, who will administer the transfer of property when the time comes. Finally, the Will must be signed and witnessed according to state law.
My great grandfather, Judge William T. Forbes, reduced a Will to one sentence:
“I, John Smith of Worcester, Massachusetts, making this my last Will and revoking all others, give all of my personal and real property to my wife, if she is then living, and if not then equally to my children and asking that my wife serve as my executor without sureties upon her bond. “
To go into more detail, here are some things to consider including in your Will:
Disposition of tangible personal property: Tangible personal property is often of higher emotional value than it is of financial value, as such it has been the source of many a family feud. This is particularly true if you promise something to someone, say a piece of jewelry, and later forget the promise, give it away or even lose it. I encourage clients to make a very general gift of personal property; and, if they want to be more specific, have a memorandum that designates more specific distributions which you can amend without changing your Will. There are also some details that, for specific personal property, need to be addressed, such as who pays the shipping costs for the 10,000 lb. bronze sculpture - the estate or the beneficiary? Also, you can make specific gifts of specific assets, such as stock or cash, if desired. If you decide to do so, consider what should happen if the stock has been sold before your death, or the percentage of your estate changes dramatically before your death. For example, if your estate is worth $100,000, and you give your nephew $10,000 as a specific bequest; and, before your death, you spend down your assets so you only have $20,000, your nephew will get $10,000, which represents 50% of your estate rather than the intended 10%. I usually say, “ to my nephew the sum of $10,000 or 10% of my estate, whichever is less.”
Disposition of real estate: Real property can be devised either by referring to a specific property or by a general gift. Real estate is devised, subject to any mortgages or other liens on the property, unless the Will specifies otherwise; and, in some case the Personal representative of the Will can sell a specifically devised property in order to pay the decedent’s debts and expenses of estate administration. When gifting real property, you should also include any property and casualty insurance proceeds from damage or loss effecting the property, and include whether the tangible personal property located at the property is, or is not, included in the devise. Sometimes clients wish to give the right to use the property to one person for their lifetime and the remainder to another person, which is called “granting a life estate.” Although it is possible to do so, it is messy when done under a Will, it is better to be done through a Trust. Another complication is how to handle real estate that is tied to some other interest, such as a cooperative apartment or a time share. In some cases, this should be handled as personal property, in other cases it should be handled as real property.
Why should you have a Will?
A Will makes the transfer of your personal and real property according to your wishes into an orderly and seamless process at your death. The Will can be as simple or as complex as your desires require; but in all cases, it should clearly define what your assets are, to whom you wish those assets to go and who you nominate to administer your estate.
This is the short answer to the question as to what a Will is. If you have other specific questions, you should consult your estate planning professional.