The
“Last Will and Testament” is an integral part to any estate plan.
Whether your estate plan calls for a living trust or not, you should have
a will.
A will
is the primary document by which you transfer your wealth upon your death.
Without a will, the law of Intestate Distribution will control.
This means the state legislature and a court will distribute your
estate in accordance to their will.
What should you have in your will?
Independent
Administration. Your Will should call for independent administration
without bond. Independent administration means that your Will is probated
with a minimum of court supervision. Nothing is called for other than
filing an Application for Probate of Will, issuance of Letters
Testamentary, and the filing of an Inventory and Appraisement.
Without bond means that your executor will not have to file a bond
(money) in order to administer your estate.
Guardian
for your children: If you
have minor children, then a guardian should be named in case both you and
your spouse die. This deserves a lot of thought. Name someone who has similar
ideas with regards to the care, management, and nurture of children that
you do. You will have to sit
down with your spouse and thoroughly discuss this issue. Oftentimes,
however, parents cannot agree on a guardian for the children so they put
off drafting a will. While they do this, they are taking the risk that
something may happen to them and a judge will appoint a guardian.
Name someone, get a will drafted and executed, if you later decide
on someone else, then go back and execute a new will or codicil to will.
Executor:
The executor is your personal representative of your estate. The Executor
has a number of major responsibilities such as (1) administering the
estate and distributing the assets to your beneficiaries, (2) making tax
decisions, (3) ensuring that all insurance proceeds are received and
accounted for, and (4) filing necessary tax returns.
The
executor can be anyone of your choice. Usually, clients choose a spouse to
be their executor with a son or daughter to be the alternative
executor. If choosing a spouse or child as executor does not meet your
needs, then anyone can be chosen.
No
Contest Clause: The no contest
clause is the "if you challenge, you better win" clause. We say
this because the no contest clause will automatically disinherit someone
if they choose to challenge the will and loose. Most will contests are
brought by heirs who are dissatisfied with your choices with regards to
the distribution of your estate. If your will has a no
contest clause, then a challenging heir better have a good reason
for challenging the will or they stand to loose everything. See John
Grisham's The Testament.
Disinheritance
Clause: A will can
affirmatively disinherit. There
are many reasons why someone would choose to disinherit an heir. For
whatever reason that you may have, your will can affirmatively exclude
someone from receiving their “share” of your estate.
If
you choose to disinherit a heir, remember two things:
