A Will
is commonly defined as a document which disposes of a person’s property after
their death. But it can be much more
than that, or sometimes less. A Will is also known as a “Last Will and
Testament”.
It is
helpful to think of a Will as being a document that gives your instructions
regarding things you want to happen after your death.
IIn
addition to saying who gets the things you own, here are some examples of the
kinds of instructions you can provide in your Will:
-
Specify the people (Guardians)
who will care for and raise your minor children.
-
Protect an heir’s eligibility
for Medicaid, SSI and other public benefit programs.
-
Protect your child or other
heir from losing their inheritance due to a bad marriage or financial problems.
-
Encourage heirs to engage in
desired behavior (e.g. get a college education).
-
Maximize the use of tax
exemptions and credits and give directions regarding the payment of taxes.
-
Create protective trusts for
family members who are young, or spendthrift, or otherwise unable to manage an
inheritance.
-
Protect your estate in the
event that your surviving spouse remarries.
-
Make inheritance tax
deductible gifts to charities.
-
Provide information and
directions regarding your social media and other online accounts.
-
Resolve family disputes
before they arise.
-
Put conditions or
restrictions on inheritances.
-
Waive costly bonding
requirements to save money.
-
Authorize the creation of
custodial accounts for younger beneficiaries.
-
Disinherit someone.
-
Limit the term of a gift (e.g.
for the life of the heir)
-
Empower your executor,
trustee, and guardian to take certain actions without having to seek court
approval.
-
Give someone the power to
determine how to distribute money or items after your death.
-
Provide care for pets.
-
Give instructions for
continuation of your business.
-
Specify who will receive a
gift if the primary beneficiary is deceased.
-
Provide information about
family heirlooms.
And
more. So, you see that a Will can
involve a lot more than just saying who gets what.
In
Pennsylvania a Will has to be in writing and be signed by the testator (the
person whose Will it is) at the end thereof. See: 20
PA.C.S.A. §2502. For
historical reasons a Will is often referred to as a Last Will and
Testament. The term Will applied to
dispositions of real property (e.g. the castle) and Testaments applied to the
disposition of personal property (e.g. your sword). But the terms have now
become inter-changeable.
Some
documents that are called “Wills” are not. For example, some people create so-called “Ethical
Wills” to provide a statement of their values. But that is not a legal
document. The poorly-named “Living Will” is a statement of a person’s desires
for end-of-life care and has nothing to do with a Last Will and Testament.
There
are some post-death instructions that you should probably put somewhere other
than in your Will. These include funeral and burial instructions because your
Will may not be read until those tasks are complete. The same goes for
anatomical gifts of body parts. And it is probably best not to defame someone
in your Will. You may just expose your estate to liability.
Having a
well drafted Will is not going to help you directly. You are going to be dead
when its instructions become operative, but it can help your family immensely.
You are doing a great kindness for your family and other heirs. It can
be a great loving gift to them. It can protect them, save them time and money,
help them avoid destructive disputes, and be a way you can continue to care for
them after you are gone.
A poorly
drafted Will can create all sorts of problems. See our earlier article: Don’t
Try This at Home: Do-It-Yourself Wills are Dangerous for
more on this topic. Unless you are a
lawyer with experience in estate planning and Will drafting, you should not do
your own Will.
It is
often said that your Will governs the ultimate distribution of the things you
own after your death. But, if you are like many people, you own assets that are
not initially controlled by the terms of your Will. These assets may include
things you own jointly with other people and assets like life insurance,
retirement plans, and annuities that have beneficiary designations. Your Will
needs to be coordinated with these non-testamentary assets so that your overall
estate plan meets your desires. Your elder law and estate planning lawyer can
help you fit the pieces of the puzzle together.