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Estate Planning and Probate Law: Why do I need a Will?

Estate Planning and Probate Law: Why do I need a Will?


A will is more than a formal written legal document setting forth how you would like your property handled at death. In your will, you can also specify guardians to take care of your minor children, establish trusts for your children’s benefit and reduce or eliminate federal estate taxes. Although you may use a “will kit” to try draft your own will, the size of your estate, your asset composition and the complexity of federal and state laws, may make it far too risky to attempt drafting a will without an attorney. If you should make a mistake in drafting your own will, you bear the risk that a court might declare your will invalid.

Your Estate

Your estate includes all the property that you own at the time of your death. Through your will you can give away any property you own at the time of your death. There could be certain assets that you own that may pass outside of your will, by way of a beneficiary designation, such as your retirement plans, life insurance, bank accounts and living trust assets or property subject to a contract. You may also own property that will automatically pass to another individual regardless of your will.

Who Needs a Will

Whether you are married, single, have minor children or own even a nominal amount of personal assets or property, you should have a will. In fact, every eligible adult should have a will or other means to control the disposition of his or her assets. Even people that have living trusts should consider preparing a will because, without a will, any property not named in the living trust will pass according to state law, not necessarily in accordance with a person’s wishes. The remaining issue is who is eligible to have a will? The legal requirements are quite simple, you need to be “of age” and of “sound mind” to enter into a will.

Will Requirements

For a will to be valid it must be prepared, witnessed and signed according to specific procedures set forth in state law. For example, under certain circumstances, a court may find that a will is invalid because it was not witnessed properly, thereby causing assets to pass according to the state’s intestate laws. In other words, the state would decide how the property would be distributed, possibly even to unintended heirs, and would make no special provisions for personal property such as jewelry or family heirlooms. Moreover, when a person dies without a will, the state will distribute his or her property according to a preset formula, excluding friends, unmarried partners, charities and distant relatives.

Your Children

If you have minor children, your greatest concern may not be who gets your assets, but rather, who will take care of your children. The courts are given broad discretion to determine who will take care of minor children if both parents die or if the surviving parent is unavailable. Even though the court has the ultimate authority to appoint a guardian, a will is the only way to tell the court who you want to raise your children.

Further, a will should set forth what assets your children will receive, how the assets will be distributed, and who will manage the assets until such time as your children are able to manage the assets themselves. Fortunately, a will affords you many options to control the disposition of assets to your children if you should meet with an untimely death. Through a will, you can leave instructions on how the property will be held and who will act as the guardian, trustee or custodian of that property. By establishing a trust for your children in your will, you can even condition when and how they will receive benefits.

Your Personal Representative

A personal representative is responsible for making sure property is distributed according to the deceased person’s wishes. A personal representative can be an attorney, an accountant or someone that you otherwise trust to handle your personal affairs. People often name their spouse, a competent relative or trusted friend as personal representative of their estate. An alternative personal representative should always be named, in the event that your original choice elects not to serve. If you fail to name a personal representative, the court will appoint one for you.


Although you can legally prepare your own will, you risk having a court declare it invalid. Because the laws that govern wills are very complex, it is best to have a lawyer prepare your will. If you have minor children, are a business owner or are concerned with federal and state taxation of your estate, it may well be worth the cost of having a more complex will prepared. Think of it in terms of the costs you save by having exercised the tax credits you may be entitled to under federal and state law. Finally, you will gain peace of mind knowing that your minor children will be taken care of according to your wishes.


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