When people think of “estate-planning” they typically think about Wills – and yes, I prepare Wills. However, I also do much more to help achieve each client’s goals.
Preparing Wills is a large part of my practice. If a person dies without a Will, state statutes determine where a person’s Probate Assets end up. These statutes are referred to as “intestacy” statutes – some refer to these statutes as the "State's Will."
A typical Will is referred to as a “Simple Will.” A Will controls only what happens to a person’s Probate Assets, so it is important for anyone who creates a Will to understand the difference between Probate Assets and Non-Probate Assets.
A Will determines not only where a person’s Probate Assets end up after they die, but also who will have the authority to manage and distribute those assets. When one creates a Will, one may nominate one or more persons that they would like to have the authority to oversee their estate distribution through probate court. This person is referred to as the “Personal Representative” (formerly known as a Testator or Testatrix). Typically, one or more back-up Personal Representatives are named as well. A Will provides instructions to the Personal Representative on how to distribute Probate Assets. The Personal Representative has a legal duty to pay debts and taxes, and then to distribute any remaining Probate Assets in accordance with the Will.
In addition to property distribution(s), parents of minor children typically nominate guardians for their children in their Wills. In the event of untimely deaths or incapacity, these nominations become very valuable in providing the court with guardianship assignments. Guardian nominations are not entirely controlling as to might obtain custody of minor children, but they play an important role. All changes in custody must be approved by the courts to ensure the fitness of the nominated person(s) for parenting, and to ensure that the change is in the best interest of the children involved, but the courts place tremendous weight on guardian nominations.