One or more features of a Last Will and Testament can be beneficial to virtually anyone. A Will serves many functions, including:
- Naming a guardian for minor children
- Leaving specific items (e.g., jewelry, a family heirloom, or a classic car) or dollar amounts to specific people or charities
- Leaving the remainder of your property to specific people or charities
- Naming an executor to handle your Estate
To understand why a Will is important, it is necessary to understand what happens if you do not have a Will. Without a Will, a decedent’s property passes in the following order:
- 100% to a surviving spouse if the decedent has no issue (children or their lineal descendants)
- 100% to the surviving issue if the decedent had no surviving spouse
- The first $50,000 and 50% of the remainder to the surviving spouse and 50% to the surviving issue if the decedent is survived by a spouse and issue
- 100% to decedent’s parents
- 100% to decedent’s siblings and their surviving issue
The person who acts as the administrator of your Estate is also determined in that order.
Thus, a Will is particularly important if you have minor children because, without one, they will need to have a guardian of the property appointed for them, who generally needs court approval before making any expenditures for your child from their inheritance. It can also be problematic for the surviving spouse not to have access to 50% of your assets.
A Will is also important for same and opposite sex couples who are not married to ensure that their assets are transferred to the surviving member of the couple and that the survivor is able to handle the Estate as executor.
Wills need to be executed pursuant to very specific rules in order to be valid. There is a presumption that the execution took place appropriately if an attorney oversees the execution ceremony.
A Will can be revoked or amended at any time. However, the same formalities required for the initial execution of a Will are required (making handwritten changes on a Will is insufficient).