Legal Will Advantages & Disadvantages

By John Cromwell

A legal will is a document that details someone’s last wishes. When the person passes away, the probate court that oversees the decedent’s estate will use a valid will to distribute the estate property. For a will to be valid it must conform to the drafting requirements provided by the state’s probate code. Probate codes do vary, so when drafting a will be sure that yours conforms to your state’s standards. Consider using an online document provider or an attorney to ensure that any will you draft follows your state’s requirements.

Distribution of Property

If you do not properly execute a will, your estate will be distributed subject to your state’s intestacy laws, which address people who die without a will. After all of your debts are paid, the remaining property will be distributed among your relatives. Most states' probate codes give a greater share to your surviving spouse, children and parents. If you want some of your assets go to your friends or to an organization you strongly believe in, you must specifically mention them in a properly executed will.

Disinheritance

A will can also be used to specifically disinherit someone. This means that you can specifically exclude someone from receiving property from your estate. Children can be disinherited by either not being mentioned in the will or by specifically identifying a child in the will and saying he gets no assets. If a child is not named in the will and was born or adopted after it was executed, many courts will assume that the drafter intended for the child to get something and will give that child a share of the estate.

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Elective Share

Spouses cannot be disinherited. The surviving spouse can claim an "elective share" of the estate, regardless of what the will may give her. The elective share varies by state, but it is generally one-third to one-half of the estate. This right supersedes any bequest made in the will; the spouse gets to take her share of the estate before any other distributions are made. As a result, beneficiaries of the will may not receive the entirety of what the decedent left them.

Child Guardianship

One common element in wills is the appointment of a guardian for the decedent’s underage children. A will cannot appoint a guardian unilaterally. Only a court can establish a permanent guardian for a child. However, the court will give significant weight to the parent’s choice of guardian as named in the will.

Revising the Will

After you draft the will, you should revisit it periodically after significant life events. Marriage, divorce and new children may change your views on whom you want to leave your property to. For minor changes, you can amend the will with a codicil. A codicil is an addendum that is drafted subject to the same regulations as a will and changes specific parts of the will. It is legally binding and is read alongside the will during probate. If you plan on making significant changes, you should revoke the prior will and draft a new will.

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How to Write a Will for an Unborn Child

References

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