Most people know that they need a will, but many don’t know exactly what a will is and how it works, or what happens if you die without one. Read on to find out about wills, why they are important, and whether you should have an attorney write one for you.
What is a will?
A will is a legal document utilized by people primarily to express and carry out their wishes about how they want their property and assets distributed upon death, and how any minor children, dependents, and pets are to be cared for in the event of their death. You may list someone as executor (also called a personal representative) of the will, which means that, upon your death, the executor has the legal responsibility to carry out the directions of your will and take care of your financial obligations, such as paying off debts and taxes, paying for funeral and burial expenses, etc. They also usually distribute property among beneficiaries listed in the will. If an executor is not listed in the will, the probate court will have to appoint one, and the probate laws specify and prioritize those who may be appointed as executor. Anyone over the age of eighteen can be listed as executor, and the executor can also be a beneficiary in your will. Most people choose a spouse, partner, or child to be their executor. If there is no executor listed in the will, a probate court will appoint one.
Talking about and setting up a will may not be the funnest thing to do, but it is very important if you don’t want strangers deciding what to do with your assets or dependents after you die. In the absence of a specified executor or a living family member willing and able to serve as executor, any of your creditors has the right to serve as executor as a matter of last resort. Thus, naming someone you trust as executor, and someone else as an alternate executor, is imperative.
What is probate?
“Probate” refers to the legal process of proving that a will is valid, and then administering its terms. When there is a written will, a probate court validates the will and then authorizes the executor to distribute the assets among the beneficiaries as listed in the will, as well as pay off debts and taxes, and provide for dependents as the will directs.
When there is no written will, the court gets to decide how your estate will be divided. They will appoint an executor, who will then follow the judge’s instructions on how to distribute your assets. This may result in a distribution of your belongings entirely differently than what you would approve of or be happy with if alive. If you die without a will, it doesn’t matter what your wishes were; a stranger will essentially be in charge of deciding what goes where.
A common misconception is that creating a will avoids the probate court. On the contrary, the probate court’s primary purpose is to administer wills. A will must go through probate except where the value of your assets is very small. Most people elect to create a living trust in conjunction with their will in order to bypass the probate court.
Why should probate be avoided?
Sometimes, probate is simple. Most of the time, however, there are three common complaints about the process:
- Time. Probate can be a long, drawn-out process, meaning your assets will be tied up for your beneficiaries. This is especially true of large estates or if there is a contested will.
- Cost. In most states, probate comes with executor fees, attorney fees, and appraiser’s fees, among other expenses. And if probate takes a long time, you can expect those costs to go up even more.
- Family feuds. No, we’re not talking about the entertaining game show. Probate has been known to cause rifts among family members. If a will is not clear on how to divide your assets or provide for dependents, or when there is a third party making decisions about your estate, and they didn’t know you or what your wishes were in the event of your death, it can result in legal fights and much bitterness between beneficiaries, who all may end up unhappy with the outcomes.
A will alone is good, but adding a living trust to your will is even better for the majority of families. A separate blog post will go into more detail about living trusts, as well as other types of trusts.
Do I need an attorney to write a will?
Not necessarily, and an attorney is not required to make a will valid. If you have simple assets, you can make a basic will naming beneficiaries for your home, investments, and treasured items. You can also name a guardian for any minor children. But if you fail to follow the legal procedures for valid wills in your State of residence, or fail to be consistent and clear in the language used, or forget to mention something important in your will, the probate court will have to make those decisions for you. Almost all wills are quite inexpensive for a lawyer to draft, often costing less than $200. The expense can be worth it to make sure the will is done right. And, for larger estates, an attorney can be very useful in providing estate-planning strategies and helping to navigate some of the more complex areas.
A will also does not need to be notarized in many states. However, in order to make things go as smoothly as possible in probate when proving the validity of a will, it’s best to have two witnesses sign the will, and then have your signature and the witnesses’ signatures dated and notarized. The witnesses should not be beneficiaries in the will.
Our St. George, Utah estate planning attorneys are highly skilled in the areas of wills, trusts, and probate. We would love to sit down with you and talk about your needs.