A will is simple estate planning tool which can ensure that your property passes to those who you want to have it, or those who need it most. With a will, you can designate your beneficiaries, name a guardian for your minor children, and name an executor who will carry out your wishes.
Below are some of the more commonly asked questions regarding Wills.
A will is an instrument in which a person makes a disposition of their property that will take effect on their death. Besides disposing of their property, people also use wills to nominate a guardian for their minor children, to nominate an executor of their estate, to disinherit heirs, or to leave directions for how they want their bodies disposed of after death.
If you die without a will, you die “intestate”. If you die without a will or a trust and have property that needs to be distributed, the property will pass by intestate succession laws- giving your heirs, if you have any, your property. Please contact our offices if you would like more information on intestate succession and a better understanding who would receive your property if you were to die without a will.
A will does not take effect until your death. A living trust is a manner of transferring property that is effective immediately.
When you die and your estate enters probate administration, the court will oversee how your property is transferred.
When you create a living trust, there are administrative steps you have to take while living in order to transfer your property into your trust. With a will, once you create your will and properly sign it, you will normally not have any need to take any more steps to ensure your wishes are carried out at your death.
Probate, or the administration of the deceased’s estate, is the process of collecting and preserving the deceased’s assets, paying the debts of the deceased and distributing the assets of the deceased to those legally entitled to them.
Once you are deceased and your estate enters probate, your estate will incur costs. Both the executor of your estate (which you name) and the attorney for the executor are entitled to compensation which is set by statute for their ordinary services. The compensation received is based on the size of your probate estate which consists of all property which must pass through probate. The current compensation for both the executor and the attorney for the executor is as follows:
4% of the first 100,000
3% on the next 100,000
2% on the next 800,000
For example, if you die with an estate worth $200,000, both your executor and the attorney for the executor would each receive $7,000, which totals $14,000.
In your trust, you can nominate a guardian for your minor children. In case of the joint death of you and your spouse, your minor children will need a guardian to care for them. A guardian has the authority to care for your minor children and exercise the rights the parents would have had when living.
While your nomination does not bind the court, the court will give “due weight” to your wishes. If you and your spouse or the other parent of your minor children both die before your children reach the age of 18 and you have not named a guardian, your choice of who should care for your children when you are not there might never be known. The court may appoint a guardian to your children who would have been unacceptable to you.
The only way to ensure that the court hear your opinion on who should raise your children in the event you and the other parent are deceased, is to nominate a guardian for your child as you can do in a will.
You can provide for specific compensation for your trustee in your trust. If you do not specify whether your trustee should receive compensation, the trustee will be entitled to “reasonable compensation” under the circumstances.