A Will is a written document that needs to be signed by the person making the Will in the presence of two witnesses in order to be valid and binding. A Will is only effective to pass “probate” property, meaning assets and accounts owned solely in the name of a deceased person. A beneficiary designation, joint ownership, or a pay-on-death designation trumps the terms of a Will, and property with those designations or ownership will not pass to the people named in the Will.
One of the main purposes of a Will is to set forth the nomination of people or institutions to fill important roles.
The first role is the Executor (also sometime called the “Personal Representative”) who will be in charge of collecting property, paying debts, paying taxes, selling property (if necessary) and distributing property to the people, trusts, or institutions listed in the Will. An executor can be an individual, like a family member or trusted friend, or an institution like a local or national Trust Company.
The next role that can be filled in a Will is that of Guardian for any minor children (under the age of 18). A Guardian is a person (not an institution) and can be an individual or a couple. Guardians do not have to be family relations, but can be friends. The job of a guardian is to oversee the day-to-day well being of a minor child. This means schooling, doctors visits, sports activities, as well as more ordinary daily living. In most every case minor children reside in the same home as the guardians. In a Will a guardian is “nominated” but the Probate Court actually appoints the guardian after verifying the person’s willingness to act and suitability. Even though the Court’s role is to finalize the appointment, a parent’s nomination in a Will is given a great deal of weight by the Court. Without a Will, family members put themselves forward to a Court as suitable guardians, and there can be disputes on who is most appropriate.
A Will can also direct how bills and taxes can be paid and personal property distributed, then the other main purpose of a Will is to direct the distribution of probate property.
Distributions could be made in dollar amounts or percentage shares. Distributions can also be made outright, or by extended distribution provisions as chosen by the client (called a “testamentary trust”). Some trusts established under Will can last for 30 or 40 years, so the Will often includes operational rules for long-term administration matters that may arise.
Distribution of tangible personal property (things like jewelry, family heirlooms, furniture, and collectibles) can be set forth in detail in a Will or the Will can reference a separate written list that will govern how those items pass. The separate written list can then be updated or added to without needed to formally re-execute the entire Will.
Importantly, a Will can go “stale.” ‘This means a Will is effective to pass property only if the original document is filed with the Probate Court in the decedent’s county of residence and a Petition is filed asking the Court to make a formal ruling that the document is the valid and Last Will and Testament. Each State has specific and strict time limits that govern the time within which a Will must be submitted for probate. If that time limit is missed, then a Will is no longer effective, and that property will pass according to requirements of state law, rather than in the manner, amounts, and to the parties chosen in the Will. Also there will be no preference given to any executor nominated in a Will.