If you die without a Will, your state’s laws of descent and distribution will determine who receives your property. These laws vary from state to state, but typically the distribution would be to your spouse and children, or, if none, to other family members. A state’s plan often reflects the legislature’s guess as to how most people would dispose of their estates; that plan may or may not reflect your actual wishes. A Will allows you to alter the state’s default plan to suit your personal preferences. It also permits you to exercise control over a number of personal decisions that state laws cannot address.
What a Will Does
A Will provides for the distribution of certain property owned by you at the time of your death, and generally, you may dispose of such property in any manner you choose. Your right to dispose of property as you choose, however, may be subject to forced heirship laws of most states that prevent you from disinheriting a spouse and, in some cases, children. For example, many states, including Pennsylvania, have spousal rights of election laws that permit a spouse to claim a certain interest in your estate regardless of what your Will (or other documents addressing the disposition of your property) provides. Your Will does not govern property titled in joint names with rights of survivorship, payable- on-death accounts, life insurance, retirement plans and accounts with beneficiary designations, and employee death benefits with listed beneficiaries. These assets pass automatically at death to another person, and your Will is not applicable to them unless they are payable to your estate by the terms of the beneficiary designations for them. Your probate estate consists only of the assets titled in your name that are subject to your Will. This is why reviewing beneficiary designations, in addition to preparing a Will, is a critical part of the estate planning process. It is important to note that whether property is part of your probate estate has nothing to do with whether property is part of your taxable estate for estate tax purposes. Wills can be of various degrees of complexity, and can be utilized to achieve a wide range of family and tax objectives. Aside from providing for the intended disposition of your property upon your death, a number of other important objectives may be accomplished in your Will:
- You may designate a guardian for your minor child or children (under age 18) if you are the surviving parent, and thereby minimize court involvement in the care of your child. Also, by the judicious use of a trust and the appointment of a trustee to manage property funding that trust for the support of your children, you may eliminate the need for bonds (money posted to secure that a trustee is properly carrying-out the trustee’s legal responsibilities) and avoid court supervision of the minor children’s inherited assets;
- You may designate an executor (personal representative) of your estate in your Will, and eliminate their need for a bond. In some states, the designation of an independent executor, or the waiver of otherwise applicable state statutes, will eliminate the need for court supervision of the settlement of your estate;
- You may choose to provide for persons who the state’s intestacy laws would not otherwise benefit, such as stepchildren, godchildren, friends or charities;
- If you are acting as the custodian of assets of a child or grandchild under the Uniform Gift (or Transfers) to Minors Act (often referred-to by their acronyms, UGMA or UTMA), you may designate your successor custodian and avoid the expense of a court appointment;
- You may designate that specific items of personal property go to specific people; and
- You may set forth specific instructions as to your wishes for your funeral, the disposition of your body (i.e., burial versus cremation), organ donation, and other similar matters
Creation of your Will, along with other estate planning documents such as a durable power of attorney and health care directive, is an important step in estate planning. Please contact our Chester County wills attorney at Perna & Abracht, LLC for assistance with your Will and other estate planning matters.