Your Will can do much more than just Dispose of your Property

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:

-         Name the person you want to be in charge of carrying out the instructions in your Wil (your Executor). This person will be responsible for wrapping up your affairs and making sure your instructions are followed.  Your Executor will be responsible for all sorts of tasks such as collecting the things you own or are owed, filing tax returns, paying your debts, closing credit cards and other accounts, accounting to your heirs, and ultimately distributing your estate in conformity with your directions.

-         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.