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Frequently Asked Questions about Wills

12 September 2008 14,906 views No Comment

Do I need a will?
In almost all cases, the short answer to this question is “Yes”. It’s not something we like to think about, but the old saying that “Nothing is certain but death and taxes” contains a grain of truth. Death is certain for all of us; what’s uncertain is when that day will come.

When we die, most of us leave an estate, which consists of property owned at the time of death. A will is a document containing instructions by the testator (the person making the will) concerning how the estate will be divided.

Preparing a will is something people tend to put off like a visit to the dentist. We know we really should do it, but dread the process.

In fact, preparing a will is not as painful as you might think. And in the long run, having a will makes things easier for your family, friends, the court system–pretty much everyone.

The information on this page is not a substitute for legal advice, but is intended to provide some basic information about wills and why they are important.

While most wills are not complicated, they must be prepared carefully in order to be valid and completely carry out your wishes. You should seriously consider having your will drafted by an attorney to ensure that it is done correctly.

How will my property be distributed when I die?
The bottom line is that if you have a valid will when you die, your property is distributed according to your will. With few exceptions, you may prepare your will however you choose.

After you die, your will must be proven valid in court, through a process called probate. The executor or administrator of your estate will then collect your assets, settle your debts and taxes, and distribute the remaining assets to beneficiaries named in your will.

What if I die without a will?
If you die without a will, or “intestate,” your property will be distributed according to a strict set of legal rules (this is called “intestate succession”.) Under these rules, the law determines who your heirs are and how your property will be divided. Your family, your friends, and the courts cannot alter this division — they must follow the law.

Dying without a will can create some problems:

  • Because the rules of intestate succession will not necessarily follow your wishes, persons you would want to inherit your property might get nothing, and vice versa.
  • The property in your estate might be tied up in avoidable court proceedings, which can be costly and time-consuming. This will not only be frustrating to your heirs, but may also deplete the value of your estate.

What about my children who are under 18?
Your will can designate a person or persons to take care of your children when you die (your child’s guardian). You may also include a testamentary trust in your will, to be managed by a person of your choice (the trustee) and distributed to your children according to rules that you establish. For example, the trustee could be required to use the funds for your childrens’ health, education, maintenance, and support.

What is a Living Will?
A living will, or “directive to physicians,” is a document that instructs your physician to withhold or withdraw life-support if you become terminally ill and certain conditions are met. If you do not wish to be kept alive by artificial means in the event of a terminal illness, you should consider signing a living will.

Many people find it convenient to execute (sign) a living will at the same time they execute a regular will, because both documents require two witnesses.

Another document, called a power of attorney, is routinely signed along with a living will. A power of attorney for health care gives a person designated by you (your agent) to make health care decisions on your behalf if you become unable to make them. A durable power of attorney gives your agent the authority to manage your property on your behalf, either immediately or in the event that you become incapacitated, depending on how it is drafted.

I’ve heard that a Living Trust is better than a will.
This is not for all people. A living will, or inter vivos trust, is a document executed during a person’s lifetime, usually instead of a will. Property in the trust passes according to the terms of the trust and is not subject to probate. While living trusts are advertised as offering tax advantages and fewer expenses than a will and probate, this is not always the case. You should consult with an attorney about the best approach for you.

Reprinted here from the adapted version found in the Texas Bar Journal on the “Client Page”, Vol 61, No. 6, page 613, from the brochure “To Will or Not to Will,” prepared by the Texas Young Lawyers Association and published by the State Bar of Texas. For a free copy, call (800) 204-2222, Ext. 2610.

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