What is a Will?
At its most basic form, a Last Will and Testament is a document that disposes your property after your death and appoints someone to manage your estate in your absence. In other words, a will answers the following questions:
- Who gets your house?
- Who gets your bank accounts?
- Who gets your personal property?
- Your pets?
- Who is going to be in charge of managing your assets, distributing them, and satisfying any creditors?
All of these questions are answered through a Last Will and Testament.
What Does a Will Do?
While there is no legal requirement an individual have a will, it is a awful good idea to have one. Here's why:
Direct Where your Assets Go at Your Death
One of the primary reasons for making a will is to direct where your property and assets go when you pass away. A recent study by the Gallup Poll found that 56% of Americans die without a having a will. That is an incredible statistic. What that means is that 56% of Americans do not have a decision in how their assets are distributed and their wishes are completely irrelevant. For example, if you want to prevent a child from inheriting, your wishes do not matter if you do not have a will. If you die without a will, state law ultimately controls distribution of your property. These laws are called intestacy laws and you can learn more about them here. However, should you have a will in place, you have personal control over where your assets go at your death.
Nominate Who You Want to Have Custody of Your Children
A will is especially important if you have minor children. If you have minor children, we strongly encourage you to nominate a close relative or friend to obtain custody over your children should you pass away. Should you die, your nominee would then petition the Court asking to be named the legal guardian of the children. Yet, be aware that just because you nominate someone you believe would be a good guardian for your children, that does not mean the Court is going to approve that person. For example, let's say you nominate your Uncle Bob as guardian for your child. Uncle Bob is a great guy, but has serious issues with alcohol and a fair amount of arrests on his record. Due to Uncle Bob's proclivities, the Court may balk at naming Uncle Bob as the guardian of the minor child. Nevertheless, generally the Court will most likely approve who you nominate should they be of good character.
Appoint Who You Want to Oversee Your Estate
If you die without a will you cannot control who is going to be appointed to manage your affairs once you are gone. Most of the time a family member or close friend will petition the probate court to be appointed as administrator of your estate. But you have no say so over who may be appointed. If it is important for you to have someone you trust be named your personal representative once you pass away, you need a will. Having one allows you to appoint an executor that you believe will follow your directions and carry your wishes out in an efficient manner.
What Happens If You Die Without A Will?
If you do not have a will at your death then you are said to have died "intestate". What that means is the laws of your state control how your assets are distributed.
For example, if you died in Tennessee and did not have a will, but wanted to leave your estate to a favorite nephew, your wishes would not matter. Tennessee intestacy laws have an order by which certain relatives stand to inherit before others. Spouses always receive no less than one-third (1/3) the value of your estate, even if you had multiple children. If you had spouse and one child, they each split your estate 50/50.
Similarly, if you lived in Kentucky and passed away without a will, your estate would be divided among family members. The surviving spouse would receive 50% of your personal property, 50% of your real estate to keep, and 33.3% of your real estate to use during his/her lifetime. The surviving children would split the remaining share of the estate.
Intestate succession can become complex if the person who died had no immediate heirs. Sometimes the assets of the estate can be split among dozens of distantly related cousins should a whole branch of the family tree have passed.
Important Provisions of a Will
At Crow Estate Planning and Probate, we write every will to suit the client's individual circumstances. We know that our each of our clients are unique and their estate planning requirements are different. We take the time to sit and down and get to know our clients' situations and what they value. However, there are a few commonalities in virtually every will prepared by an experienced attorney. Here's what they are:
Define Your Family
When a writing a will, you should define your family members. For example, if you are married and have children of your own and your spouse has children, the document should say who they are. You want to make sure there is absolute clarity as to who you are referring to if you say “spouse” or “children”. Failing to do so can create some ambiguity in the will.
Defining who your family is especially true if you are cutting a child or other relative out. You want to expressly note that you are disinheriting or excluding that family member at the outset. Be careful though as in both Tennessee and Kentucky you cannot prevent spouses from inheriting.
Direct Your Executor to Pay Debts and Expenses
Wills should always contain a clause directing your executor to pay off your debts, administration expenses, and taxes. So what does that mean? When you die you may have debts and expenses such as:
- credit card balances
- personal loans
- payments owed to third parties
- funeral expenses, and
- attorney fees
These types of debts need to be identified by your executor after your death and reported to the estate attorney. If they are legitimate debts, your executor may be required to satisfy them. Additionally, administration expenses such as funeral expenses, attorney fees, or the cost of obtaining death certificates should be satisfied by your executor. Similarly, if you have income, inheritance, or estate taxes owed, your will should empower your executor to satisfy those obligations.
Make Specific Bequests or Gifts
If you desire to make specific gifts to certain individuals or to charity these gifts should be specifically included. For example, if you wanted to leave money to your church or to a charity your will should say so. Similarly, if you desire to leave certain assets to your children, you would want to identify the assets and state that they go to your kids. In any specific provision, you should also have a contingency plan if that individual dies before you or if that charity closes its doors before your death.
Distribute Your Remaining Assets
Wills should contain a catch all clause for all assets not specifically given away. This part of the will is sometimes called the “residuary devise”. These assets usually comprise the bulk of your estate. Let's say that you have given away specific items and made gifts of cash, but are silent on the remaining assets. Your residuary devise should direct where the remaining assets go and how they should be divided.
When deciding what assets to give to certain people try to be as descriptive and as clear as possible. This is especially true with personal property. For example, let's say you wanted to leave "my earrings" to your daughter. This provision could be ambiguous. Do you mean all your earrings, or just a few pair? What if you had more than one daughter? What if that daughter predeceased you, do her children inherit the earrings? As you can see, it is vital that you be as clear and unambiguous as possible when preparing your will. An experienced will lawyer can help guide you through the pitfalls of ambiguous language to ensure that your intent is clear.
Amending Your Will
Once you create your will, you may wonder: Can I change my will or amend it? The answer is yes, wills can easily be changed and amended. The legal term for an amendment is a “codicil”. Codicils must meet all the requirements of a validly executed will. They are a standalone document that should be kept alongside the original will for safekeeping. A codicil may be very simple in nature or it could be very broad, drastically changing the original terms of the document.
Determining whether you need a codicil or a new will can be a tough decision. If you have multiple codicils already you might want to consider executing a new will. The codicils should be incorporated into the new will. The logic behind that decision is that the more separate documents you have the easier it is to lose them. Moreover, multiple amendments are often confusing and difficult to follow, especially if more recent codicils amend older codicils.
Do Not Cross Through Sections of the Will
Generally speaking, it is never a good idea to scribble, cross through, or hand write over a typed will that was previously executed. Most of the time this action creates very difficult problems when the will is being offered into probate. The judge must determine whether the changes are valid based upon the requirements for a handwritten will. The judge must decide:
- Are the handwritten changes actually in the handwriting of the person who executed the original will?
- Were these changes signed by the testator?
- What if the handwritten changes are ambiguous or unclear?
These are tough questions for a judge to answer. Consequently, there can be a host of problems associated with physically crossing out sections or adding handwritten provisions to a will. At the very worst, the will could be tossed out and declared invalid. Instead of marking on the actual instrument, execute a new will or codicil incorporating the changes you desire.
You Can Make A Handwritten List to Supplement Your Will
Tennessee law has recently changed to allow tangible personal property such as furniture, clothing, guns, or heirlooms to be distributed to certain beneficiaries even if the writing does not qualify as formal codicil or amendment to the will. However, there are certain requirements the list or writing must have in order to be valid:
- The list must be referred to in a will.
- The list deposes of tangible personal property not otherwise disposed of in the will.
- The list is handwritten by the person who died; or if it is not handwritten, the list must be signed by the deceased.
- The list is dated.
- The list physically describes the items with reasonable certainty as to what the items are.
To be clear, these types of lists can only be used for personal, tangible property, not for bank accounts, investment accounts, real estate, or property used for a business.
Generally, the best course of action is to prepare a will that allows for flexibility down the road. The will should have a clause that states that the person making the will may make a list in the future that bequeaths certain personal items to individuals in the future and directs the executor of the will to look for such a list and follow its instructions.
Revoking a Last Will and Testament
Over time, life changes. When major life changes occur its a good time to revisit your estate plan and determine whether it still suits your needs. Wills can always be revoked by the person who made it. There are a few ways that this can be accomplished:
Revoke the Old Will By Writing a New One
The most common way of revoking a will is to write a new one that expressly revokes a will that was previously executed. A clause in the will should state that the this is the individuals last will and testament and it revokes all prior wills. But what if the new will does not expressly revoke the old one? Generally, if the provisions of the new instrument, such as property distribution or appointment of a certain executor, are inconsistent with the old will, the probate Court will likely consider this a revocation of the old will.
Destroy the Document
Physically destroying a will serves as revocation. If you decide to destroy your will be sure that you physically perform the act or that you direct someone to destroy the will. Set it on fire, throw it away, shred it - it's your decision.
You Must Show That A Will Was Actually Executed
This means that either you have a copy of the will or you have some other type of evidence to show that the decedent actually had a will and executed it. A blank copy of a will with no other supporting evidence will not likely be enough to establish a lost will.
You Must Prove That It Was Not Revoked
Generally, when the original will cannot be found after death, there is a strong presumption that the person who executed the will destroyed or revoked it. You have the burden to show:
- The person did not revoke the will.
- A will was actually executed.
- The will was not revoked.
- The circumstances why the original will cannot be found.
You Must Prove The Contents
If you have a copy of the will it must be filed with the court at the time you open the probate estate. Additionally, even if you only have part of the will, the parts you do have need to be provided to the court. If the will was destroyed or was lost, witnesses can offer proof of its contents from what they observed and remembered. But remember, the burden of proof is on the person offering the will into probate. They must prove the content of the original will by convincing evidence.
Find the Witnesses to the Will
If you have a copy of the will, the probate court will require the testimony or affidavit of at least one witness stating that:
- They were indeed a witness to the signing.
- The copy of the will is a true and accurate representation of the original instrument
It is a good idea to jot down the home address, telephone number, and email of the witnesses and include it with the will. As the years pass, many people move away or pass away themselves so it is good to know how to contact them if the need arises.
Make Sure You Secure Your Will
When your attorney creates a will, they should ask you where you plan to keep your original document. The lawyer should and make a note of it in their file and on a copy of the will they provide to you. This notation is very important as many times family members attempt to find the will but have no clue where you may have kept it. When this happens, they should contact the attorney who prepared the will and check to see if they know where the original is kept.
Consult an Experienced Will Attorney
If you are considering making a will, give us a call to discuss how you would like to plan your estate. Our firm exclusively focuses on the areas of estate planning, probate, and business formation in the Clarksville and Hopkinsville regions. Attorney John Crow has the knowledge and experience to skillfully create a will that meets all your goals.