I Have a Will

Protecting Your Legal Rights


I Have a Will

A Will: Is it the Best Tool to Protect Loved Ones?

Many persons are under the impression that they must have a will in order to protect their property and loved ones upon their death. A will is a good tool to have to accomplish that goal, but not necessarily the best.

What is a Will?

A will is a legal document that directs the distribution of a person’s assets upon their death. It is ineffective to transfer anything until the death of the testator or will maker. Only the “last will” or the latest dated will is valid and no prior will has any effect upon the validity of the most current one.

Who Can Make a Will?

A person must be legal age, of sound mind, and have the understanding of who his heirs are and what his estate is for a will to be valid. A will should be written and signed and witnessed by two disinterested people, people not named in the will as beneficiary. There are some exceptions to the written will but the best method is to have an attorney prepare your will.

Who Should Have a Will?

The will is important for parents of minor children. Should both parents die in a common incident, their will permits the appointment or designation of who will become the guardian of their children. Without such a provision of your will, the court would appoint a guardian of your children, taking into consideration what it deems to be in their best interests.

What is Probate?

Probate is the Latin word for “prove” and is a legal court proceeding designed to assure that a person’s will is followed through or proven. Each county has a Probate Division of their court system which is designed for that purpose. The will is presented to the court and an Executor or Administrator is appointed by the court to carry out the will’s directions. Probate can be a long and drawn out proceeding. It is somewhat tedious and difficult to understand and usually requires the assistance of legal counsel to assure that all procedures are followed correctly. Further, any assets which are “probated” are subject to the claims of creditors and attack of your estate can be attempted through a will contest.

Avoid Probate

In order to avoid probate, simple steps can be taken prior to death which can pass your property without any court procedure. Aside from a will there are many other methods of assuring that your property passes to the person you desire without the pitfalls of probate. By placing assets in a “joint and survivorship” title, the asset will pass automatically without any probate proceeding.

Assets Which Bypass Probate

Real estate, bank accounts and brokerage accounts can be set up so that instantly upon the death of one of the joint owners, typically husband and wife, the survivor becomes the sole owner. This is done by contract between the owners and even a will cannot avoid the passage of title despite mention of the item in a will. There is however, some risk in holding financial accounts in the joint and survivorship manner. Upon creation of the account, both owners are of equal status and either can withdraw from the account or close the account without the consent of the other. As for real estate, both owners signatures are necessary to transfer or otherwise make the property subject to a mortgage.

Trusts Avoid Probate

Trusts are also available which can help you avoid probate. Trusts can have their pitfalls as well as sometimes one must give up total control of the asset for it to be valid. Trusts must be prepared by an attorney and are usually used where the person has greater amounts of property.
In order to determine what is best for you I must recommend that you visit with your family attorney. He can determine what best suits your situation and advise you of the manner in which to prepare for what most people try to, but cannot avoid.