The Will
I want every competent adult, age 18 and older, to have an estate plan. I often receive calls from people asking me if they are “rich enough” or “old enough” to prepare a will. I always say yes, as long as they are 18 or older and have sufficient mental capacity. If you do not have a will when you pass away, the Law of Intestate Succession takes over. This law directs who shall be given your assets and who shall be in charge, based on your family tree and are not necessarily the individuals you would have named in your will.
You may wonder, why have an estate plan at such a young age? I have seen all too often that “things“ happen to people of all ages, and they often regret not filling out these documents sooner.
A will allows you to name the person, people, or charities that will receive your assets—money and other property. Whenever someone dies (“the decedent“), leaving behind titled property in the name of the decedent, the estate must be probated. “Probating an estate“ means paying the decedent’s debts and changing legal title from the decedent’s name to the names of the living beneficiaries.
A will allows parents with a minor child or children to name a guardian for them if neither parent can raise the child(ren) due to death or unfitness. Choosing guardians for your child(ren) will prevent any uncertainty for your family. You can even choose two guardians for your minor child(ren): one who will have the child(ren) live with them and the other who will handle the finances. It’s your choice. With such an appointment by a will, upon your death or your incapacity, the appointed guardian may simply file a petition in probate court, along with the original will. A judge will not change the parents’ designated guardian unless proof is presented that the proposed guardian is “unfit,” a very difficult standard to prove. However, if there is no will, a judge will have to choose the guardian. This requires the filing of court petitions. Often, there will be competing petitioners. No parent wants someone competing for their child(ren). It is much better for the parents to choose the guardian(s) rather than rely upon a costly and stressful court process with an uncertain outcome. If you don’t want to face the task of choosing, I will help you get past the “stuck” place.
In addition, a will provides key provisions, such as a bond waiver, and the power to sell clause and appointing the guardian for minor children.
Of the five documents, only the will is needed post-death. The other four documents are critical if the person signing the documents becomes mentally incapacitated. Without the following discussed documents, guardianships and conservatorships must be filed in probate court. These court proceedings are expensive, time-consuming, and stressful for the family members. All of this can be avoided with properly drafted documents designating the best agent for each job.