October 18, 2008

The Simple Will:

Most estate plans contain a Will document, and are often referred to as a “Simple Wills.” A Will document is a foundational part to almost everyone’s estate plan, and provides written authority as to the disposition of your assets, and perhaps who you wish to take care of your children. Every Will should have a person designated as a “personal representative” (or may be called an “Executor” depending upon the state where you live) that you wish take care of paying your debts and making sure that your wishes are carried out.

What makes a simple Will “simple”? The term “simple” has nothing to do with the document not being complex – most simple Wills are quite complex in their construction, and are very structured documents that comply with the formalities of the state where the person resides. Basically, the term “simple” means that the Will contains no trust provisions (we’ll discuss trusts in the next several posts). A simple Will makes an outright provision for passing the asset directly to the beneficiary without having it administered for their benefit by someone else (called a Trustee).

If you have children that are under the age of 18, then you most likely will not be able to use a simple Will. You will need to consider some type of a trust document as part of your estate plan to ensure that your assets are managed for the benefit of your children. However, if you are under age 50 and don't expect to leave assets valuable enough to be subject to Federal estate taxes, you can probably get by with only a basic will. But as you grow older and acquire more property, you may want to engage in more sophisticated planning.

You have likely heard that if you do nothing else to take care of your legal affairs, you should write a will, and it’s pretty good advice. If you don't make a will before your death, state law will determine who gets your property and a judge may decide who will raise your children (and either or both may not be whom you would have chosen). Writing such an important document as a Will can be intimidating, but it doesn’t need to be. A good attorney will work with you to discuss your unique family situation, your wishes, and draft a Will that will meet your needs and be a legally enforceable document.

Because to the state laws requiring formalities upon the execution to be valid, it is always a good idea to engage an attorney to help you draft the Will according to your wishes and ensure that it is executed according to the formalities required by the state. If your Will is not properly executed, the Court may be asked to set the document aside and your wishes will not be respected. Your estate will be managed by the laws of “intestacy”, meaning that the state will follow its own laws in how your affairs will be settled, and who will take care of your children.

A last important consideration in drafting your Will is to remember that this document will ultimately be considered “public” information. Once your Will has been admitted to probate, your wishes are a part of the public record. If you have concerns about the privacy of your affairs, you may wish to work with an attorney to set up a trust that will ensure that your assets will not go through the Probate process, and therefore will be kept quite confidential.