A last will and testament provides instructions on how a person's affairs should be handled after their death. It provides guidance to probate courts to act in accordance to their wishes, and provides a framework for the executor of the estate to follow as they proceed to carry them out.
It is important to keep some things in mind when preparing to administer a will after a person's death, including whether or not carrying out the will requires the probate process and the formal requirements and limitations that contribute to the validity of the will.
What is Probate? Is it Necessary in All Cases?
For larger estates, it is usually always necessary to go through the probate process, which means that the assets can be distributed through the probate court. Smaller estates under a certain amount can bypass probate altogether after an estate proceeding. Not all assets have to be probated, however. Things like life insurance policy proceeds, which specifically name the beneficiaries within the policy, or property that is held in living trusts, would not need to be probated because they have a separate set of stipulations on how they are to be distributed. Additionally, property that is held jointly provides that the surviving tenant gains control of the deceased person's interest automatically, so probate is also not necessary in this case.
The Validity and Limitations of a Will
As described in our previous blog, each state has a different set of criteria for determining the validity of a will, including how the will is drafted and who witnesses and signs it. In most cases, it is in a person's best interests to prepare a typed, printed, signed, and notarized copy of their will in order to avoid any possible complications. Some states, however, do still recognize wills drafted in the testator's own handwriting or those which are dictated and signed in the presence of a notary and witnesses. Changes can be made to a person's will while they are still living in the form of an amendment, or codicil, without requiring the entire will to be redrafted. Their will is valid inasmuch as there fails to appear any other version of the document that could supersede it.
There are some laws that prevent a testator to disinherit dependent children or spouses. Unless there exists a prenuptial agreement that gives consent for this to occur, a married person cannot completely cut their spouse out of a will after their death. Nondependent children may be disinherited, but to avoid any misunderstandings, this should be clearly stated in the will.
What Happens if There Is No Will?
In the event that a person dies without a will, their estate becomes intestate and their property will be distributed to surviving relatives through the courts after all death expenses and debts have been paid. If the deceased has a surviving spouse, children, or grandchildren, property is divided among them first; otherwise, property can be given out to any other relatives. State intestacy laws do not provide for anyone other than relatives to receive property, so if it is a person's wish to provide for charities or friends, they must clearly indicate their wishes in a written will. In the absence of any family, the entirety of the estate would pass to the government.
It is always best to prepare for the inevitable and make arrangements that are in the best interests of your family before it is too late. By naming an executor and avoiding intestacy, you can make sure that you are in control of who is provided for after death.
For help creating a will, contact The Virdone Law Firm, P.C. today.