A Will (also known as a Last Will and Testament) is a document that specifies how you want your property distributed after you die. An extremely simple will might say, “I Billy Bob, being of sound mind, give all my worldly goods to the love of my life, Doris;” however, a Will is generally more detailed than this.
There are three basic players in a Will:
- The Testator – the person who wishes to distribute his or her property after they die.
- The Beneficiary – the person to whom the property is given.
- The Personal Representative or Executor – the person who petitions the probate court to distribute the property as directed in the Will.
Although they are not generally thought of as property, children are also distributed via a Will, in the sense that the Will names guardians for any minor children.
Probate is the process the state uses to supervise the distribution of property via a Will. In order for a Will to take effect, it must be administered by the probate court. The court will certify that the Will is valid. There are very strict rules governing the execution of a will. It is important to have competent legal advice and assistance when executing a will to insure it is valid.
Of course, not everyone has a Will. The State has anticipated this and in every state a statute exists which specifies how the property of the deceased will be distributed at death if there is no Will. If you like the State’s plan, you do not need a Will. If you do not like the State’s plan, you should have one. In either case, the State will supervise the distribution of the property via Probate. Property held in the name of the deceased must go through probate to be transferred or sold.
There are several ways to distribute property after death without a Will and without probate. Examples are:
- Joint Ownership with Right of Survivorship – Real estate or a bank account can be jointly titled, such that when one joint owner dies, the other person automatically keeps the entire property or account.
- Payable/Transfer on Death Accounts (POD/TOD) – A bank or brokerage account may have a beneficiary listed to whom the account will pass after the death of the owner.
- Life insurance – proceeds of a life insurance policy will be directly paid the named beneficiary without probate.
- Revocable Living Trust – Functions like a Will, except that instead of the court supervising the distribution, a successor trustee is named to do this. It is private, fast and generally much less expensive than probate.
It is wise to obtain good counsel in this area of law. A lawyer once said, “You don’t need a lawyer to execute a Will. Lawyers make most of their money cleaning up the mess when Wills are not properly executed.”