There is a general understanding that every adult should have a last will and testament. However, for most people, exactly how that will is used remains a mystery. By understanding when a will is used, and how, each individual can create a more realistic estate plan.
A last will and testament is a formal document which expresses someone’s wishes for distributing his or her property after death. This should not be confused with a “living will,” which is a document that formalizes an individual’s choices for end-of-life decision making.
The last will and testament should include instructions for distribution of property, but also may include provisions for the care of children, disabled dependents and even pets.
Wills are not effective for the intended purpose until death, although in some cases a 2ill can assist family members and estate planners in understanding the individual’s goals for property if he is living but unable to speak for himself.
Several roles are included within the will. The first is the individual creating the will, otherwise known as the testator. The second most important is the person or group of people receiving property after the testator’s death. These people are the beneficiaries. The third role is of the executor, the person who manages the estate until it is distributed and the court action is closed.
For individuals who die without a valid will, the court still appoints someone to manage the estate, but instead of an executor, this role is called an administrator.
Although rules vary from state to state, typically an individual’s will is not filed until the testator’s death. At that time, the individual named as the executor will take the will to the court in the county where the testator lived and will open a case.
The case opened to handle the collection and distribution of an estate after death is called a probate case. Probate actions may need to be opened in each additional state where the decedent owned real property. After the probate matter is opened, the will is recorded in the county clerk’s office and becomes public record.
Not everything the testator owned will have to be distributed to beneficiaries through the probate action. Accounts with specified beneficiaries generally flow directly to the beneficiaries and property held jointly with another person may have a provision allowing for the survivor to remain the sole owner.
Any property solely in the decedent’s name or held jointly but without a right of survivorship must be part of the probate action.
The reason for this is because there is no living person with the legal right to transfer the individual’s property, so the court must determine the rightful owners. Creditors also may claim that the individual owed them money and the estate may be required to pay them before distributing property to beneficiaries.
If no valid will can be found for the decedent, a probate case still must be opened. However, the court will be required to follow the default laws regarding who will receive the property and in what way. Neither an executor nor an administrator can begin to act until a probate matter has been opened and the formal appointment has been made with a court order.
Understanding how a last will and testament will be used and what property actually passes through the will is the first step to making an estate plan that will be both efficient and protective.
Cynthia Griffin is an elder law and estate planning attorney at Burnett and Griffin PLLC in Elizabethtown. She can be reached at firstname.lastname@example.org.