Basic Issues to Consider when making your Will
A Will is formally known as a Last Will and Testament. In order to make a Will you will need to address the following basic issues:
1. What property do you wish to include in your will? Preparing a list of your property that you are considering in your Will would seem pretty easy. However, certain property will not pass through your Will at all. If title to your home is held in joint tenancy with your Husband or Wife, they will automatically get the property. It will not pass through your Will. The same is true of life insurance proceeds, bank accounts with “payable on death” designations. In addition to a list, attention needs to be paid to the current title to all property.
2. Which family members or loved ones do you wish to obtain your property? You should identify in advance the Beneficiaries of your Will. Also, you will want to identify the property that each Beneficiary will receive. In lieu of this, you may simply provide that each Beneficiary take equally or a certain portion or share such as one-half or one-third.
3. What if your Beneficiaries do not survive you? Normally, a Will will provide that your Beneficiaries must survive you. If they do not, there are two options. First, the non-surviving Beneficiary’s share or property shall be distributed to other beneficiaries you have named. The second alternative is that the surviving beneficiary’s share shall be given to that beneficiary’s family. Your will should provide for this contingency.
4. Who will handle your estate? A person who is in charge of the estate created by your Will is called an executor. This is the person whom you trust to make decisions, with the court’s permission, regarding your estate so that the terms of your Will are carried out. An executor need not have legal training, although he will be called upon by the court to complete certain tasks, such as submitting the Will to probate court in the first place, conducting an inventory of your property, selling your property, and other tasks. The probate court may require that the executor post a bond as insurance for his or her acts. There are professional executors that you can choose from. An executor may hire an attorney of his own, which is common, and makes the probate process easier.
Other considerations that you should consider are who will be the guardian for your children (if they are under the age of 18 when your Will is probated), and do you wish to have a Living Trust instead.
Keith F. Carr is an attorney practicing Bankruptcy, Divorce, and Estate Planning. Attorney Keith F. Carr has over 30 years experience. Founder of Law Offices of Keith F. Carr, located in San Francisco, San Jose, and Palo Alto, Ca.