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Saturday, December 20, 2008

Your "Last Will and Testament"

The Simple Will

A will sets forth the manner in which you want your assets to pass to your heirs.

There may be legal restrictions on what you can do in a will under the laws of your jurisdiction, such as restrictions on disinheriting a spouse or, in some cases, children. There are also assets that aren't covered by a will, such as the proceeds of an insurance policy which will pass to the designated beneficiary named in the policy, certain joint property, joint bank and brokerage accounts, and retirement plans and death benefits.


A "testator" is a person who has made a valid will.

A "testamentary will" establishes a trust for some or all of the assets in the estate.

A "pour over will" places some or all of the assets of the estate into a trust that is created during your lifetime (an "inter vivos" trust, or "living trust").

A "holographic will" is written, dated, and signed in the handwriting of its author. In some states, a holographic will can be probated once it has been authenticated, even if it isn't witnessed. It is best to have a will properly witnessed, as your jurisdiction may not accept holographic wills, and there may otherwise be unnecessary difficulty authenticating your will.

What A Legal Will Can Do

A properly executed will may:

*Provide for heirs who would not be able to inherit based upon the laws of intestate succession, such as a step-child;
*Provide for contributions to charities, churches, or causes you believe in;
*Designate a guardian for your minor children, and designate custodians or conservators to manage their assets;
*Designate an executor, sometimes called a "personal representative", for your estate, and depending upon the laws of your jurisdiction may permit you to waive the requirement that the executor post a bond, or help you avoid court supervision for the distribution of your estate's assets;
*Designate a successor custodian for assets held for children under the Uniform Gifts to Minors Act, or Uniform Transfers to Minors Act.

Execution of a Will

Wills are ordinarily signed in the presence of witnesses, and sometimes in the presence of a notary. In some states, the proper execution of a will in front of a notary will make the will "self-authenticating", meaning that it will be accepted by a court without any further proof of its authenticity.

An estate planning professional can help you figure out which of your assets and property won't be covered by your will, and help you provide for those assets to pass in accord with your wishes. A professional can also help you determine what taxes will be owed by your estate (including such mundane tax expenses as your last year's income taxes), and what expenses will be associated with the administration of your estate, to help you make sure that you don't end up with any unfunded bequests. Please note that no matter what you put in your will, it will not change the distribution of assets outside of the probate process. For example, if you have an insurance policy or annuity which specifies a beneficiary, that beneficiary will receive the proceeds upon your death even if you designate a different beneficiary in your will.

Why A Will Makes Sense

It makes sense to execute a will even if you believe all of your assets will pass to your heirs through other estate planning vehicles, such as trusts or insurance policies, "just in case". This can be a "pour over" will, which simply ensures that any assets accidentally left out of your estate plan are put into a living trust.

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