Most people think of an estate plan as simply planning for the distribution of your assets after you have passed through the creation of a will. A well drafted plan consists of more than a will and should also include an advance medical directive, power of attorney and in some situations, a trust. The goal is to have a plan that is usable, flexible, and meets your needs for a long time to come. Together, these documents allow you to safeguard your goals, protect your values, and avoid or delay guardianship.

This blog post addresses the will. 

What is a Will?

A will is a legal document that directs where property will be distributed upon death.

Who can make a Will?

You must be 18 to execute a will and have the requisite capacity to do so. If you have assets and you are able to identify to whom you want those assets to be given upon your death, then you likely have the requisite capacity to execute a will. 

How do you create a Will?

In a nutshell: 

1. Think about what you have and who you want to have it after you pass.
2. Write it all down.
3. Sign at the bottom before 2 witnesses.
4. Have those witnesses sign as well.

Things to consider when writing a Will:

Who will administer your estate? 

This person is called the personal representative or the executor. You may prefer to have a particular person act in this role; however, think about whether they can handle the process. Although it is quite simple for someone to make a valid will, it can be quite complex for your personal representative after you pass. Can your intended personal representative handle it? 

Who will inherit?

One must be careful when creating lopsided inheritances or disinheriting anyone expected to inherit as this can create acrimony and possibly litigation in the future. If you have a large estate, think about the ability of those inheriting to handle a large inheritance. Consider, also, if there is anyone that you would like to particularly provide for because of a disability they may have. Some of these concerns can be managed through a trust, which is addressed in another blog post. 

Why would I want to change or modify my will? 

Keep in mind that your will is valid until you either revoke it or change it. If your will is lost or destroyed, it is considered to be revoked. 

A modification to a will that has already been executed is called a codicil. There are many reasons to consider a codicil; some examples:

• Your marital status changes
• The property you own changes significantly 
• Any of your beneficiaries pass away or become incapacitated
• The person named as your personal representative (sometimes called an executor) is no longer able to serve
•  You change your mind about the provisions in your prior will

(Hint: We advise assessing your will every 5 years or after significant life events like those stated above.)

What happens after I pass?

The process in which the directions in your estate plan are carried out upon your passing is called Probate. It is a legal process that verifies the validity of a will and grants your executor or personal representative the power to begin distributing your assets and satisfying your debts.

To begin the probate process, someone must file a Petition with the court. While it does not have to be done by your named personal representative, it usually is that person. If your will is not already with the register of wills, the original will need to be filed with the Petition. The Petition asks the Court to accept the will as valid, to appoint a personal representative, and open an estate.

Probate is a public process; however, the court’s involvement ensures that a neutral third party oversees the administration of your estate.

The Bottom Line: 

Whatever estate plan you have, safeguard the original documents and share your intentions.

The Register of Wills can keep your will, your drafting attorney can usually maintain your documents too, and you might also consider keeping an encrypted, electronic copy of everything. 

Make copies and, to the extent possible, share with those that you have named in your estate planning documents – discuss your plan with them. This helps avoid any future surprises which could lead to legal disputes.