1. Why should I make a will?

A will allows you to state how you want your property (estate) distributed, name an Executor
(also called a Personal Representative) to distribute your property, pay debts and taxes, handle
other business affairs to settle your estate, name a Guardian for your minor children, provide for
your favorite ministries and set up trust funds.

Having a will speeds up the process of distributing your property after your death and can
save expenses. Without a will, state laws dictate who receives your property, who serves as
Administrator (the name usually given to a court-appointed Executor) to settle your estate
and who serves as Guardian for your minor children. Furthermore, without a will, there is no
charitable bequest to your favorite charity. State laws are strict and rigid and rarely match what
you would want to happen. Furthermore, without a will, your estate costs are likely to be much
higher. There are many cases in which a person saved a few hundred dollars by not signing a
valid will, and the estate then spent tens of thousands of dollars to settle disputes and distribute
the property.

2. Does a will distribute all of my property?

Certain assets pass outside of the will. For example, assets owned jointly by two persons with
rights of survivorship will pass directly to the surviving owner. Life insurance, IRAs and pension
plan proceeds go directly to the designated beneficiary. Property placed in a living trust is
controlled by the provisions of the trust, not your will.

3. If I have a living trust, do I still need a will?

Yes. The living trust provisions apply to assets placed in the trust but the will controls other
assets that have not been placed in the trust, such as furniture, household furnishings, clothing,
personal property and any property acquired after funding the living trust. Typically, the residue
from your probate estate is added to your living trust.

4. How can I change my will or living trust after they have been signed?

First, never cross out a sentence or words or make notes on your will or trust. These handwritten
notes are an invitation for estate litigation. To change the will, your attorney will prepare a
“codicil” which is an amendment to your will. If many changes are desired, your attorney may
draft a new will. A living trust is changed by your attorney drafting an amendment to the trust. A
codicil to your will or amendment to your trust must be signed and witnessed, following the same
formalities that were used in the initial signing of the will or living trust.

5. If I become divorced, is my will revoked?

In some states – yes, it is revoked. In others, a divorce may have the effect of revoking only the
provisions that relate to your former spouse. You should check with your attorney to find out
what your state law says if you are contemplating divorce. Most of the time, your attorney will
advise you to sign a new will after the divorce.

6. What is probate?

Probate is the court-supervised legal procedure that determines the validity of your will (if you
have one). The probate judge supervises the gathering and inventory of your estate assets,
payment of debts, taxes and administrative costs, and the distribution of your remaining assets
to your beneficiaries (if you have a will) or if not-to next of kin as determined by state law.
Probate of a smaller estate after one’s death may be a simple process and not costly. However,
probate of larger estates can involve significant time and costs. With proper planning, needless
expenses can be reduced.

7. How can I avoid probate?

It takes careful estate planning. Some of the ways to avoid probate include jointly owned
assets with rights of survivorship or creating a living trust that is funded during your lifetime.
Also, assets such as IRAs, life insurance and pension plans can go directly to your designated
beneficiary without probate. Since living trust assets avoid probate, individuals who value
privacy place assets in their trust. Assets passing under a will do not have this benefit, since a
will becomes a public document after a person’s death. Bank accounts and brokerage accounts
can be transferred to individuals or charities in desired percentages by POD (Payable on Death)
or TOD (Transfer on Death) designations added to those accounts. In some states, a beneficiary
deed can transfer real estate to individuals or charities at your death without probate.

8. What is a will “contest”?

If a disgruntled relative seeks to have the will declared invalid by filing a lawsuit, a will contest
occurs. The disgruntled relative usually feels that he or she did not get “their fair share” of
your estate. He or she hopes to have the will declared invalid and thereby attempts to gain an
increased share.

Some of the reasons that wills are contested include claims that the person was not of sound
mind when the will was created, that the person did not understand what was being done, or
that the person was under coercion or undue influence. Some states allow “self-proving” wills,
to help discourage will contests. With a self-proving will, the signer and witnesses affirm that the
will signing is valid and then the will or affidavit is notarized.

9. How can I leave a charitable bequest?

It can be as simple as stating in your will the amount or percentage value of your estate that you
want to go to a favorite charity. A charity may also be named as a beneficiary on life insurance,
IRAs and other retirement plans by listing the charity on a change of beneficiary form provided
by the company. You can also list charities as a full or partial beneficiary of a bank or brokerage
account through POD (Payable on Death) or TOD (Transfer on Death) designations. Real estate
can also be transferred in some states by beneficiary deeds or by a life estate deed signed during
your lifetime.

10. When should I update my will and estate plan?

About every two or three years, or sooner if any of the following occur:

• You move to another state
• Death of spouse or divorce
• Change in estate value or receiving an inheritance
• Incapacity or death of you or your spouse, Executor, Guardian, Trustee or Agent
• Birth of children or grandchildren
• Change in charitable giving plans

Last updated on May 28, 2019 by My Legacy of Faith