Last Will and Testament
A will is a legal document in which you state who will get your money, real property and personal property upon your death. These are designed to go to Probate Court – they are a set of directions for Probate Court. The nomination of your Personal Representative (Executor) is only that – a nomination. It is not effective until a Probate proceeding of some type is opened and the Court orders that the individual nominated is in fact the Personal Representative.
If you have minor children, your Will is the document in which you name a Guardian for the child in the event of your death as well as the Conservator . Again, these are nominations which require a Probate court proceeding to make them affective.
When You Die Without a Will:
You are considered “intestate” when you die without a will. Your assets will be distributed according to the law of the state where you reside. The Probate Court will select an administrator (Personal Representative or Executor) for you estate which may or many not be a relative or friend.
The Probate court will select a Guardian for your minor children which it believes will protect the best interest of your children. The Court must do this without your guidance as to the most suitable individual. The Court will do its best to make a fair determination which it believes is in the child’s best interest. Generally, the Court will prefer in-state relatives over those out of state, and it will prefer family to friends. This may be in keeping with your philosophy – or – it may be contrary to your particular values and goals.
When You Die with a Will:
You can protect your family by providing for their needs by allocating the resources you are leaving behind among those that you love.
You name the guardian for your minor children which means that it is your decision. You are the individual who has the most knowledge concerning your child’s best interest.
You will name your Personal Representative. This will be an individual who knew you and your beliefs, values and goals. It need not be a stranger selected by the Court to handle the “job” of Probating your estate.
Jointly Held Property Not Enough:
Jointly held property, if with the right of survivorship, will automatically vest in the joint tenant –should they survive you. If they do not, for instance, in a simultaneous death situation, who will receive that property?
Jointly held property, if held with an individual other than a spouse, means that you have given up a portion of your ownership rights. You may not sell or transfer without the joint tenant’s consent. Your joint tenant’s share will be subject to his/her creditors including IRS liens and from judgments from lawsuits.
Who to Choose:
When you name a person to be your personal representative, it can be a friend, relative, spouse, attorney or professional management such as a bank, trust company. The decision is completely up to you.
Remember., however, this individual will be responsible for collecting and managing the assets in the estate, notifying creditors, paying debts. He or she must make distributions to beneficiaries and keep accurate records. All appropriate tax returns must be filed.
Care should be taken in matching the individual to the job. Being the Personal Representative of an estate is actually hard work – not an honor. You should not select an individual who is not good at completing tasks, nor one who has trouble managing money.