A will is a legal document that states a testator’s wishes and instructions for managing and distributing their estate after death. In contrast, intestate succession is passing the property of the decedent according to the State’s intestacy statute instead of a will.
Key Things to Know About Wills
A will is the only place to nominate a guardian for minor children. This is one of the most important aspects of a will and cannot be overlooked. All parents of minor children should document their choice of guardians so you do not set up a family battle or unintentionally send your children to a guardian you would not choose.
A will does not become effective and therefore has no legal authority until after death. So a will does not help manage a person’s affairs when they are incapacitated, whether by illness or injury. Although you can nominate your executor (the person who can administer your probate assets in a public forum), they are ultimately appointed by the court. Until the court gets around to appointing your executor, your assets are in limbo and no one has the right to access and distribute your assets, pay expenses, and otherwise handle your financial affairs.
A will does not help an estate avoid probate. A will is a legal document submitted to the probate court for approval, so it actually necessitates probate and forces your family to seek court intervention. Essentially, the court and those who do not know your family may make decisions for you.
A will directs assets left in your name or that were not otherwise designated to pass to a specific person or entity after your death. This results in the court taking over the process, forcing your family to list all assets publicly as they try to determine who should inherit. At that point, anyone has the ability to go to the probate court and see what you or your family own.
Assets left in your name alone precludes anyone from having the legal authority over that asset after your death. Banks and financial institutions will freeze your accounts, shut down access to them, and prevent your family from accessing your assets until the court approves your will and appoints your executor.
Having a will-based plan is rarely appropriate for clients who want to make things easy, private, and simple as they take care of their families.
Testamentary Trusts
A testamentary trust is a trust created under a will and is not effective until not only the will but the trust, is approved by the court and the trustees of the trust are approved by the court. This causes a second layer of probate intervention and monitoring: not only will the executors be required to report and give an accounting to the probate court, but the trustees of the testamentary trust must also file a separate accounting.