Importance of Properly Drafted and Executed Will
By George M. Riter, Esquire
If you do not have a Will at the time of your death, each state has established statutes known as intestate succession laws which will dictate how the property that you own will pass and to whom. These statutes can create problems since assets may pass to children or relatives that you do not intend to benefit. They do not take advantage of the current tax laws to minimize tax exposure at your death, as well as subsequent family deaths. Wills can be created in several ways. One is by a handwritten document which is signed and dated, but need not be witnessed, which is known as a holographic Will. In addition, Wills can be drafted and forms are available at certain stores, on the internet or software. The safe approach is to engage an experienced trust and estate lawyer to review your particular family and financial circumstances and draft the appropriate documents.
People often defer going to a lawyer to draft a Will because of their concern for costs and their mis-belief that they can do it just as well on their own and save expense and time.
However, if a person chooses to either not draft a Will or attempts to prepare one on their own, be it a holographic Will or through other sources, the chance for errors is increased. There is no error in the Intestate Succession Act and the rules governing assets are absolute; however, assets passing to minor children would need to be held in a guardianship account, a guardian would be appointed by the Court and guardian fees paid without the flexibility of a trust if a Will had been properly drafted addressing these issues. In addition, relatives that you may not have intended to inherit upon your death may become beneficiaries.
In a recent case, a father had written a holographic Will in which the father wrote that he wanted “… all proceeds from the money that is left and from all contents in the house …” to one child. However, the Will did not say to whom the house should go or every other assets that the father owned at the time of his death. Therefore, rather than having all assets pass to the one named child, the unnamed child also shared in the rest of the assets, which may not have been what the father had intended. This ambiguity lead to litigation and a court had to resolve the issues. With some frequency, when individuals create their own Wills, they address those assets that they have thought about and identify the individuals to receive them. However, by not including a “catch-all” provision to make sure that any and all other assets, not specifically given to an individual, are properly addressed, it results in confusion, with the potential need to look to the Intestate Acts of the various states, and perhaps litigation.
Bitter experience has taught many, many individuals that it is much more economical, tax-efficient and cost effective and beneficial for your family to have a properly written and executed Will in place in the event of your death. Please feel free to contact any member of the trust estate and private client group at Timoney Knox who can ably assist you.
