A legal will, or last will and testament, is a document that determines the management of your affairs after death. Estate planning for older individuals often aims to circumvent the need for a will, by distributing assets prior to the person's death or placing them in a trust that passes outside of probate. However, people who have young children as well as those who are traveling, entering into danger or suffering from a terminal illness, especially in youth or middle age, need a legal will too.
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Wills are not just for the elderly or wealthy. Anyone over the age of 18 who is not under a legal impairment can become the testator of a will, even if they do not have a large financial net worth. Any property, including a bank account or a car, constitutes an estate that can be distributed in accordance with the directions in a will. The executor of an estate can pursue a wrongful death action if the testator is killed in an accident, such as one occurring during a recreational activity. The proceeds of such a suit then go into the testator's estate to be distributed in accordance with the terms of his will.
Parents of minor children should use a will to appoint a guardian for the care of those children in the event that both parents die in order to avoid creating a custody battle between family members. For parents of adult children with special needs, appointment of a conservator in a will can help ensure the parents' property gets managed for that adult child's continued care and benefit. Although some parents with sizable assets create a trust for their children, a will is still necessary to name a guardian as well as distribute any residual estate assets that might not have been included in the trust.
Property owned jointly with a spouse, including real estate, bank accounts and investments, usually passes directly to the surviving spouse when the other spouse dies without going into the deceased spouse's estate. A will is still useful, however, to establish the distribution of the property if both spouses die within a short time period. Property owned together with a non-spouse family member, friend or business partner may become an asset of an estate, or may be counted as part of the estate for tax purposes even if title passes directly to the co-owner. A property owner can name an executor in her will and specify the powers the executor has to sell, lease, subdivide or distribute any property that may be in the testator's estate.
People Who are Divorced or Remarried
Divorce and multiple marriages are both special concerns that require consideration in a will. If a person with children from a prior relationship remarries without a will, his present spouse may inherit all of his estate, depriving the children of the first relationship of any legacy or inheritance from that parent. On the other hand, if a person makes a will prior to his second marriage that does not include the second spouse, the marriage will not invalidate the will. Unless the beneficiaries named in the will agree to set the will aside, the second spouse may have to bring an action in probate court to be awarded a statutorily set portion of the deceased spouse's estate. Creating or updating a legal will at the time of divorce and at the time of any subsequent remarriage can clarify the estate distribution and help avoid contested probate actions by the heirs.