A will is an instruction by a person (called the "testator") which directs the disposition of his or her property after he or she dies. A will can also designate a guardian for surviving children, and designate the person who manages and settles the estate ("the executor"). The laws governing wills vary among states.
A. Why have a will? A will simply distributes a deceased person's "probate" assets (see below", as he or she desires. If a person does not have a will, the property is distributed under the "intestacy" laws of the state in which he or she dies. All states have some form of intestacy law. Intestacy laws are intended to distribute a deceased person's property in the way that "most" people would desire. For example, in Virginia the probate assets of a single person without children (or a will) are divided equally between his or her parents. Generally speaking, a married person's property is given to his or her spouse and/or children. However, the "standard" distribution under state intestacy laws may not be your desired distribution. Moreover, intestacy laws may vary between states. Therefore, many military personnel use wills to assure proper disposition of their property regardless of where they are assigned.
B. What property does a will distribute? A will only distributes certain types of assets known as "probate" assets. A will has no effect on the distribution of non-probate assets. Non-probate assets have a "built-in", legally recognized mechanism to transfer the property upon the death of an owner. Common forms of non-probate assets include such items as proceeds from an INSURANCE POLICY (SGLI) with a named beneficiary, and a military death gratuity that is paid to the beneficiary named in a service member's PDR. Also, some items such as bank accounts, savings bonds, and IRA accounts may be distributed to the beneficiaries named on the account documents ("POD: or pay on death beneficiaries"). Finally, property held jointly with the right of survivorship passes directly to the surviving joint owner (regardless of a will) immediately after the first joint owner dies. For example, if a husband and wife own a home as "tenants by the entirety," then the home passes to the wife immediately when the husband dies. For many people, the majority of their assets may be non-probate" property. Since a will cannot change the distribution of this non-probate property, it is very important that both you and your legal assistance attorney understand how your property is owned, and who the beneficiaries on any life insurance policies, bank accounts, etc. are.
To complicate matters, sometimes these common forms of non-probate property become probate assets. This occurs when the "built-in" transfer mechanism fails or is used to place the asset into the probate estate. For example, an insurance policy will become part of the probate estate if there is no named beneficiary, or the policy is payable to the deceased person's estate or to a Trust created in his or her estate. Property owned jointly by a husband and wife with a right of survivorship becomes the wife's probate property if her husband dies before her.
C. What can you do with your probate property? The testator may leave property to any person or entity he or she desires. The recipient is called the "beneficiary." This will names a primary beneficiary; secondary beneficiaries named in the will may receive the property ONLY if all primary beneficiaries die before the testator. A will can only distribute the property owned by the testator. While this seems obvious, the law concerning "marital" or "community" property can significantly reduce the amount of property that one might expect to be in his or her probate estate. While there are exceptions, in general, a person's will may only dispose of their portion (often 1/2) of the marital or community property.
D. Child beneficiaries require special attention. First, the category of children must be defied. Our wills define "children" as those no loving and those born or adopted after the will is signed. Stepchildren must be specifically included in the will so inform your attorney if you have any stepchildren. Second, minor children may not own property. The testator may want to consider a trust and trustee in the will to manage property for children. Third, a testator with older children (15 and older) may want to plan for distribution to grandchildren if a child predeceases the testator. This is done with the designation of distribution as "per capita" or "per stirpes." For example assume John had three children, Peter, Paul, and Simon. One of his children, Paul, dies before John, leaving two Children, John's grandchildren, Mary and Ruth. John later dies without changing his will. In a per capita distribution, Peter and Simon would share the property fifty-fifty. In a per capita distribution, grandchildren do not share unless all children die before the testator. In a per stirpes distribution, Peter and Simon would each get one third. Ruth and Mary would get equal shares of Paul's one-third.
OTHER WILL TERMS:
Specific Bequests - Specific bequests are special gifts to family and friends. The testator may give all his property to a beneficiary, or he may give specific items (such as jewelry) to one person and the remainder of the property to someone else.
Disinheritance - A testator cannot prevent a spouse from sharing in his or her property simply by omitting the spouse from the will. Disinheriting the spouse may also be ineffective in preventing access to the estate. In most states, a spouse is entitled to a portion of the probate estate even if the will does not provide for the spouse. A divorce will usually prevent the spouse from inheriting the property. A separation agreement may also prevent the spouse from inheriting. A child may be disinherited if the testator specifically states his intentions in the will.
E. What else can a will do? A will can also designate a guardian for surviving children, and designate the person who manages and settles the estate (the "executor").
An executor manages and settles an estate by gathering the assets and paying the debts of the testator. A testator should name a primary executor and an alternate who will serve if the primary cannot or will not serve. Our wills do not require an executor to post a bond or other security. Some states require executors to be residents.
A testator with minor children should name a guardian to manage the person and property of the children. Generally, the surviving natural parent should be named as the primary guardian (unless that parent's parental rights have been terminated). An alternate guardian should be named to serve if the primary guardian cannot or will not serve. A court will appoint a guardian if the testator does not name one. Some states require guardians to be residents. EACH SPOUSE IS RESPONSIBLE FOR ENSURING THAT THE GUARDIAN NAMED IN HIS OR HER WILL IS CONSISTENT WITH THE GUARDIAN NAMED IN THE OTHER SPOUSE'S WILL.
F. How can you change your will? After the will has been "executed," i.e. signed in front of witnesses, it is valid and it revokes any prior wills. Until death, the testator may revoke or change a will. A will should be reviewed after changes in status (death, birth, and divorce). A testator should consult an attorney before changing a will: CORRECTIONS, CHANGES, ALTERATIONS, OR ANY OTHER CHANGE MAY INVALIDATE ALL OR PART OF A WILL.