Wednesday, February 1, 2012

What Is A Will

It's February and I declare that Definition Month here on Illness, Death and Taxes for the Middle Class.  For the next 28 days I will be devoting my posts to the definition of terms common to estate planning.  Enjoy.

All too often I hear the question "Probate?  Why do  I need probate when there is a will?"  And with that, my role as an educator begins.

Photo Credit: - free image

A will is a document that tells the probate court what you want to happen if you die.  A will does NOT avoid probate.  A basic will allows you to:

  • nominate a personal representative (commonly colloquially called the "executor);
  • nominate a guardian for minor children; and
  • distribute your probate property.
Wills need not be elaborate, and requirements for its validity depend on the state in which you live.  Here in Wisconsin it should be signed and dated by the testator in the presence on two witnesses.  If you have the resources, it is highly advisable to work with an attorney to draft a will.  Blended families, inheritances, marital property, predeceased relatives can quickly complicate matters.

Safekeeping of a will is also highly important.  Gone are the days when lawyers will keep it in their vault, or at least those days should be gone. Doing so gives that lawyer an unfair advantage if changes are needed or a probate commenced.  When I work with clients I had them the originals and advise them to keep it in a fire proof box at home.  I do NOT recommend it be kept in a safe deposit box.  Upon death, the document that allows someone to get into the box is IN the box.  And then you have a mess.  If you are not comfortable keeping it at home, check with your local courthouse.  Here in Wisconsin you can put your will on file for a nominal fee.  Just be certain to leave a record of where you put it.  Whether stored at home or the courthouse, it does no good if no one can find it.  

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