Last Will & Testament FAQ
What is a will?
A will is a document which directs how and to whom the property in your estate shall be distributed after your death. In addition, your will should name a person you want to settle your estate after your death. If you die without a will, relatives would inherit according to the laws of North Carolina and this could result in someone you do not like (or don't even know) getting all or part of your property.
Should you have a will?
Some people believe that they do not need a will because they have few assets of any value. Others believe that even without a will their property will go to their spouses. If you die without a will (or intestate), the state will distribute your property among your relatives, but it may be in a manner you never intended. For example, you spouse may be entitled to claim only a partial share of your property with your minor children inheriting the rest of your property in equal shares. This shared ownership could cause serious problems for your spouse in managing the property or trying to sell it. A will offers you the opportunity to make these matters easier for the surviving members of your family, and it gives you flexibility in leaving different items of property to different people. State law does not do either of these things. There are other important reasons for having a will which are often overlooked. If you and your spouse die at the same time in an automobile accident, then state law would name your nearest relative to receive your property, even if you did not want him or her as your heir. A carefully drawn will can prevent much uncertainty, even in the event of common disaster to you and your spouse. If you die without a will, state law prescribes how your property will be divided among the relatives who survive you. Their degree of kinship to you may be an important factor in such a situation. Making a will gives you the choice of how your property will be divided. Dying without a will means the court will name a person to administer your estate, pay your debts, pay your taxes and distribute your property. This appointee is called the ADMINISTRATOR of your estate. On the other hand, if you have a will you may name a relative, close friend, or even an institution (such as a bank or lawyer) to take care of these matters. This person is called your EXECUTOR.
What are the legal requirements for a valid will?
A will must meet specific and formal requirements of state law. These vary from state to state. If they are not met, your will may be declared invalid. If that happens, your property will be distributed as though you died without a will.
How do you revoke or change a will?
Your will can be revoked or changed at any time before your death. The best way to revoke a will is to destroy the original and execute a new will. Trying to change your will by scratching out parts of it or writing in changes will probably cancel the entire will. A written amendment to a will is called a CODICIL.
Why should you want to revoke your will?
Events such as death of an intended beneficiary, divorce, new property holdings, additional births, and new tax laws are some likely reasons.
Why should go into your will?
Naming your beneficiaries. The most obvious decision required in making a will is who is to get your property when you die. You should have a good idea of how you want your property divided when you come to our office. You should also consider providing for contingency beneficiaries in the event your primary beneficiaries may not be alive at the time of your death. If there are items of your property which you would like to leave to a particular person, you can do this by making what are called specific bequests. Each item must be described in detail and the person so named will receive it at your death if it is still available. Assets can also be divided among groups of people. You can provide for distribution should some of the members of the group die before you do.
Choosing an Executor. The choice of an Executor is an important one. The Executor should be trustworthy, willing and capable of handling finances and property. It is the responsibility of the Executor to take your will to court for probate. Probate is the process by which the court decides whether a will is valid and thereafter supervises the distribution of property according to the will. The Executor will have to qualify before the court in your county of residence and is entitled to receive compensation for services performed for the estate. Once officially appointed by the court, your Executor will be responsible for:
- Collecting and safeguarding your property.
- Filing property inventories in court.
- Having your property appraised (if necessary).
- Giving legal notice to creditors and paying all debts of the estate.
- Preparing and filing state and federal tax returns (if necessary) and paying any taxes which may be due.
- Filing an accounting of the handling of the assets of the estate with the court.
- Distributing your estate to your named beneficiaries.
What other ways can property be passed at death?
A will is not the only means of disposing of property at death. For example, the proceeds of life insurance policies pass pursuant to the life insurance contract to the named beneficiary, not pursuant to your will. Property held in joint tenancy with right of survivorship (such as a jointly owned house or bank account) automatically passes to the survivor by operation of law. Trusts are sometimes used to distribute property in conjunction with wills. What about large estates? Be sure to let your lawyer know your total assets and whether your estate might grow significantly in the future, either by appreciation of assets or by future inheritances or gift. With such information the lawyer can review several estate tax-saving devices of which you should be aware.
Contact us to inquire about a Last Will and Testament.