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Do I Need a Will? Why? Do I Need an Attorney? Why? What is Probate? . . . And Other Questions About Wills. . .

Most people understand the importance and necessity of having a Will. Whether you are young and just starting out, or are established with complex assets, a Will is a basic component of estate planning. Wills, however, carry with them many misconceptions. Have you ever read a book or watched a television show that depicted conflict and drama while reviewing a deceased loved one’s Will? As entertaining as this may be on screen, this is not an accurate representation of how Wills work normally or what they are, especially if they are drafted correctly.

What is a Will?

A Will is a legal document that outlines your wishes of how you want your property to be distributed at your death.  In your Will, you name someone you trust to distribute your assets at your death according to your Will.  This person is the Executor and they are bound by fiduciary duties to carry out the terms of your Will.  In a Will, you also name the people you want to receive your property.  These are your Beneficiaries.  And, it is important to note that a Will must be executed with all of the formalities required by the Estate’s Code in your state.  If it is not, your Will will fail.

Why should I have a Will?

If you do not have a Will when you pass, your assets will go to your blood relatives. This is determined by your state’s intestate succession laws.  In other words, without a Will, you really have no control over who will receive your property. If your wishes are not for your brother Fred to take possession of your prized Porsche, then drafting a Will is a must.

Who should draft my Will?

Most people assume that a Will can easily be done by templates and online resources.  But, Wills are not one size fits all and, in many cases, these “template” Wills fail for that very reason.  This happens all of the times and, unfortunately, if your Will fails, your property will be distributed to your blood relatives via your state’s intestate succession laws discussed above.  An estate planning lawyer will ensure that your Will is drafted correctly and will not fail.  If you’ve already drafted a Will yourself, it’s beneficial to hire a lawyer to review the Will and make sure it will hold up in court.

What if I change my mind?

You could just tear up your existing Will and any existing copies, but this is not the best option, as it leaves you, once again, without a Will. The better options would be to either make a Codicil to your existing Will (which is an amendment), or have a new Will drafted altogether. If you only have a few small changes, making a Codicil is the way to go. This is like adding a “P.S.” to your Will, where both documents will be read and interpreted together. Drafting a new Will altogether, however, will reduce the possibility of any confusion that an add-on to your Will might create. Again, whether you make a Codicil or a new Will, all of the formalities required by your state’s Estate Code statutes must be followed.

Do you have to probate a Will?

Your Executor has no authority to distribute your property pursuant to your Will until the Will goes through Probate and the Executor is appointed by the court and duly qualifies for that position.  Probate is the legal process a Will goes through in order to have the property in your estate distributed to your beneficiaries. However, there are several circumstances—such as type of property or how it is owned—that might make probate unnecessary, but these rules can vary by state and circumstances.  With the guidance of an estate planning attorney, the specific situation regarding your property should be evaluated as there are many different types of probate proceedings and the attorney can determine what property, if any, does not have to go through probate.

Like with any legal matter, it is not always the easiest to try and navigate Wills or probate on your own. You know that having a Will is a wise decision, but ensuring it is done right requires the assistance of an estate planning lawyer. An estate planning lawyer will be able to clear up any misconceptions you might have about Wills, and give you peace of mind by ensuring that your Will incorporates your wishes and is legally binding.

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