Your will helps assure that your assets will be
distributed to the persons you want in the right amounts and at the right
times. You can use your will to reduce or eliminate the taxes that will be
levied against your estate, to avoid family conflicts, and to provide for
religious, educational, or other charitable causes. A will also allows you
to give your executor flexibility in dealing with your estate, eliminate
the need for filing costly bonds, and minimize other costs that can
diminish the amount received by your heirs.
If you have young children your will provides you with
the opportunity to protect them after you are gone. Your will is the legal
document you use to name a guardian to care for your children after your
death. Choosing a guardian for your children may be one of the most
important (and most difficult) decisions you will ever have to make.
However, if both you and your spouse were to become incapacitated or die
without naming someone in a will to be responsible for your children's
care and finances, the courts will be forced to appoint a guardian without
the benefit of your knowledge and judgment. Factors you may want to
consider in choosing a guardian include the guardian's age, personal
characteristics and religious and moral qualities. You can also appoint a
trustee to administer a trust for the children until they reach a
specified age later than age 18.
A will gives you the opportunity to select an executor.
The executor is the person who will be in charge of finalizing your
affairs and administering your estate. Your executor has many
responsibilities such as collecting the assets you own or are owed and
protecting them until they are distributed to your beneficiaries. In
addition, the executor sees to it that all debts, expenses and taxes are
paid and that other legal requirements are followed, and that your estate
is managed and distributed in accordance with the instructions you
provided in your will.
Serving as executor can be quite complicated. Your
executor may need to obtain appraisals, process claims, register stocks
and bonds, pursue lawsuits, prepare information for beneficiaries, prepare
tax returns, and so on. You should give careful thought to the person you
choose. Ideally your executor should be knowledgeable in business and
financial matters, patient, thorough, and fair minded. You may want to
name a co-executor, or an alternate executor in case your original choice
cannot serve. You may even want to name a bank or other professional
executor. If you die without a will, a court will have to appoint someone
(called an "administrator") not of your choosing to perform the
executor's functions.
After your death your will must be proved to be valid.
To do this, your executor "probates" your will by filing it with
the Register of Wills of the county in which you resided at the time of
your death. The Register of Wills then gives your Executor documents
called "short certificates" which authorize the executor to
perform the functions needed to administer your estate. If questions arise
regarding your will or the handling of your estate, a Judge of the Orphans
Court will be available to resolve them. However, since the rules
regarding wills are very well established, it is rare that a Judge will
ever need to get involved.
It's a good idea to have a lawyer prepare your will. A
competent attorney can prepare your will using precise legal terms that
can avoid later problems for your heirs. Yes, you can draw up a will on
your own without a lawyer, but for most people this is not advisable.
Varying state laws, uncertain tax implications, obscure legal
requirements, the need to avoid ambiguities, and your unique
circumstances, all can trip up the non-professional. Considering what is
at stake, saving legal fees can be a false economy.
As important as your will is, the transfer of some of
your property may occur without regard to the provisions of your will.
Joint bank accounts, for example, usually become the property of the
surviving account holder. A home that is owned jointly with a provision
for "right of survivorship" automatically passes to the
surviving owner. Other assets not affected by your will may include life
insurance, annuities, IRAs and other retirement plans, and other assets
for which beneficiaries have been named. You need to create a plan that
covers all of your assets, not just those that will be distributed
according to your will. Good estate planning requires a coordinated review
of all of your ownership and beneficiary arrangements. Your will is a key
document in your plan but it is not the only document. Professional
assistance can help you make certain you do not miss any important
elements in preparing your estate plan.
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