What Can a Will Do for You?
A Will is a written document, generally prepared with the help of an attorney that provides instructions for the disposition of a decedent's (dead person's) property. The term "Last Will and Testament" is simply a more complicated name for a Will.
There are some advantages of having a will:
Knowing what will happen---With a will, you will know who is going to receive your assets as you direct (e.g. family members, friends, a domestic partner, or charitable organizations).
Preventing arguments---Without a will, many arguments can ensue among family members. The advantage of a will is that all types of arguments are completely prevented-they have no say.
Planning for Minor Children---A parent of minor children may nominate a guardian for the children by Will. With a few exceptions, the nomination becomes effective upon the guardians filling of a notice of acceptance of the appointment with the Court. This may save time and money for the surviving family members.
Also, if the parents do not believe that a minor child should gain control of an inheritance at age 18; the parents may leave the property to a custodian or trustee for the benefit of the child under a Will. This allows for management of the assets until the child reaches a suitable age, without the need for creating a trust or custodian in advance of death.
Disinheritance---The law applicable to estates of those without a Will provides for the transfer of an individuals estate to a specified class of individuals (i.e., spouse, children, parents, siblings, etc.). If a person is disinherited and member of that class (with exceptions), a Will is needed.
Selection of an executor--- A person may nominate an executor by Will. The executor (also called personal representative) is responsible for the collection of estate assets, payment of debts and distribution of the estate. In addition to selecting someone that is well-suited to the job, nominating a executor may save time and money for the surviving family members.
Cost Savings in Probate---A person may reduce probate expenses by preparing a Will. A properly executed Will may avoid the need for court proceedings to prove the Will. A person may also waive certain bonding requirements for the nominated personal representative or guardian by Will. If appropriate, these items may minimize the expense and complexity of the probate proceedings.
Legal Requirements for a Will
A will should generally be typewritten or printed using a computer printer. This is a legal document and needs to be clear and legible to people following your death.
A will should clearly state that this is your will and revoke all previously made wills.
The person who makes a will must be legally competent and acting voluntarily and without pressure from any other person, and be at least 18 years old (or living in one of the few states that permit younger persons to make a will if they? remarried, in the military, or otherwise considered "emancipated.");
The person making the will (known as the testator) should be clearly identified in the will by full name.
In addition, the person must be of sound mind. This means the person must be fully aware of the nature of the document being written or signed and aware of the property and the identity of the people who may inherit. They should:know what a will is and that you are making one understand the relationship between yourself and those persons who you would normally provide for, such as a spouse or children understand what you own, andbe able to decide how to distribute your property.
Finally, the testator must sign and date the will, and the testator's signature must generally witnessed by two or three witnesses, who must also sign the will. The witnesses should not be beneficiaries of the will.
Pour-Over Will
A pour-over will is a particular type of will used in conjunction with a trust. Most people intentionally don't put all their property into the trust, sometimes for convenience (such as a car --- some states and insurance companies seem incapable of dealing with vehicles held in a trust) or other times for tax reasons (it may be Subchapter S stock that often does not fit well in a trust, or real estate and they don't want to risk triggering a property tax re-assessment). Most often people forget to put newly acquired property into a trust on an on-going basis.
To prevent the creation of an intestate estate, it is extremely necessary to make a pour-over will. Why? Because it is a last will and testament in which a provision states if there is an asset that was left out of your revocable living trust, then the missing asset is to be poured over into your revocable living trust so that the missing asset will be transferred along with the other assets of your revocable living trust. Here is an example: ''I leave the remainder of my estate in trust to the trustee of the Testator's Children Support Trust that I created on July 10, 2005. This living trust has already existed; the purpose of the pour-over will is not to establish a living trust in a will, but to put the missing assets into an existing trust.
A "pour-over" will, like any other will, must go through probate if the decedent dies owning assets which must pass through the will.
Sometimes it depends on the value of the probate assets that are controlled by the will. For example, in California, if the assets add to up to more than $100,000, a probate is required.If the amount does not exceed $100,000, the assets can be transferred to the trust by using declarations as authorized by California Probate Code section 13100.
Hint: Whenever a Trust is used, it is essential to also have a pour-over will to catch your property which was not held by the trust, not held in joint tenancy, or subject to other contractual arrangements at the time of your death.