Dying without a will is called dying “intestate”. If you die without a will, state intestacy laws determine who will receive your property. Laws may vary from state to state but typically they follow a common scheme--distributing your assets to a spouse first, and if none, then your children. If you have children from two marriages, things get confusing, and your surviving spouse would not be your sole beneficiary. If you are unmarried and have no children, then your assets are distributed to other blood relatives. Planning allows you to choose!

A will does not dispose of any property you hold with another individual with survivorship rights, such as property owned as joint tenants. Upon death jointly held property automatically transfers to the other title holder. Similarly, property held in trust will not be affected by the terms of your will, as it is governed by the terms or the trust agreement. Annuities, life insurance and retirement accounts provide for the payment of benefits outside of a will to named beneficiaries. Bank accounts now have beneficiary designations transferring accounts to the named beneficiary at the death of the account holder. Joint bank accounts also automatically transfer to the survivor. Our Estate Planning Professionals will help you decide how to best structure your plan so that all asset pass according to your wishes and avoid any beneficiary designation contradicting the terms of your will.

You will need to sign your will in the presence and hearing of two adult witnesses (unrelated) who then sign the document as well in the presence and hearing of each other. The reason for such strict requirements is that the law is designed to assure that a document purporting to be a will does in fact reflect the final wishes of the author. Generally, a will does not need to be notarized but attestation from a notary does add a layer of verification which in some states establishes a presumption of validity and simplifies the probate process.

Choosing an agent who will make potentially make medical and financial decisions on your behalf is possibly one of the most important planning decisions that you will make. Your agent should be someone you trust and someone in whom you have confidence to act in your best interests even in the face of stressful situations or outside pressure from other family members and friends. You can separate your financial decisions from your medical decisions. You can appoint one person to hold a power of attorney for financial decisions, and another person for medical decisions. Your agent does not need to be a family member. While not necessary, it may also be wise to appoint an individual who lives near you, in the event they need to act on your behalf when time is critical. This is probably more important for a health care agent. You should always consider alternates in case the named persons refuse or cannot act for you.

A Personal Representative is the new term for Executor and is the individual whom you appoint (or in the absence of a will, the court appoints) to administer your estate when you die. Much like your agent, the person you select should be someone you trust and someone in whom you have confidence they will carry out your final wishes. The person should be capable of handling financial matters and maintaining detailed records. Many times, the personal representative will be an adult child or sibling; however, it is important to consider whether the appointment of one child or sibling will put a strain on any other family relationships. You should always consider alternates in case the initial persons are unable or refuse to accept the position.

The Trustee is often the same person who is appointed as your Personal Representative, but not always. You may have Trustees to administer assets for your benefit or your spouse’s benefit or for the benefit of your children. If you name a child as the Personal Representative, you typically do not want that person to be trustee of a trust held for the benefit of a sibling, other than to administer and distribute the assets as directed in the trust. If there are funds to be held over any length of time for a child or other beneficiary, you need a trustee who can remain independent and properly account for use and management of trust assets for the beneficiary. If the trust will extend for longer periods of time, over 5 years or more, you should consider use of a bank or other professional trustee because they have processes to avoid loss or fraud or gross errors. Always consider naming alternate trustees in case the named trustee cannot act for any reason.

A guardian is the person who has legal responsibility for the personal care of your children in lieu of his or her parents. There are many things to consider when picking a guardian. This is the person who will be parenting your children or who has responsibility to place the child with someone who will, so it is important to pick someone who loves your children, is responsible and capable of raising your children. It is also important to keep in mind the effect on your child. Is your child fond of this person? Does the person live nearby so that the child does not need to be uprooted, or will you provide for them to remain in their family home? Will your children still have easy access to their other relatives? Once a guardian is selected you should discuss your selection with that individual to ensure they are willing to act. You should always consider appointing an alternate guardian in the event that the first cannot act or changes his or her mind.