How to Divide Possessions When Making a Will

By John Cromwell

One of the purposes of a will is to ensure your assets are transferred to the people of your choice. Not all property you benefit from during your life may be transferred by a will. If you are a beneficiary of a trust, you cannot bequeath the trust property. If you co-own property in a joint tenancy or tenancy by entirety, you cannot leave your rights in the property to a beneficiary. If you own property as a life tenant, you cannot leave that property to a beneficiary. What property remains can be transferred through a will.

One of the purposes of a will is to ensure your assets are transferred to the people of your choice. Not all property you benefit from during your life may be transferred by a will. If you are a beneficiary of a trust, you cannot bequeath the trust property. If you co-own property in a joint tenancy or tenancy by entirety, you cannot leave your rights in the property to a beneficiary. If you own property as a life tenant, you cannot leave that property to a beneficiary. What property remains can be transferred through a will.

Step 1

If you are married, your spouse has a right to the marital property after you die. Consult with your spouse regarding what property she wants after you pass away. If you do not explicitly name her in your will, the court will give her a portion of your estate regardless of what your will says. Some states will give her a share equal to what she would have gotten if there had been no will. To ensure the right property is transferred to your spouse, list all of the assets you want her to have in the will and follow it with the phrase “to my spouse.” Include your spouse’s name when identifying which assets she is supposed to receive.

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Step 2

Consider what you would like to leave to your children and grandchildren. For any assets you want to give your children, specifically identify the item in the will and state it is to be transferred "to my child." Examples of appropriate language to convey property in a will would be “I give my grandmother’s wedding ring to my daughter, Julie” or “I give $125,000 to my son, John.”

Step 3

Specifically identify any children you want to disinherit. If you do not mention one of your children in your will, the court will likely assume you did so in error and intended to leave something to your child. To protect against accidental disinheritance, the probate court will give a child who is unnamed in your will a portion of your estate. If one of your children predeceases you but has living children who are unnamed in your will, the court will give your grandchildren their deceased parent’s share. If you do wish to disinherit a child or grandchild, you must specifically disinherit them in the will. An example of language that could do this would be; “my grandson, Charlie, is to receive nothing from my estate.”

Step 4

Identify which specific items you would like to leave to your friends as the remainder will be given to your relatives. The process for transferring property is to identify the asset you wish to transfer and the person you want it to go to in the will. An example would be “my signed Ty Cobb baseball to my friend Jack.”

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Children's Rights in Estate Wills

References

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