Do You Have A Will?
Even non-procrastinators seem to procrastinate when it comes to making a Will. We all inwardly do not want to deal with the idea of death-especially our own.
There are many practical reasons for having a Will, especially if you have children under the age of 18. In this case, an important function of a Will is to designate who you want to take care of your children and the money you leave them, if your children are left without both parents. You can name a “guardian of the person”-the person you want to actually take care of and raise your children and a “guardian of the estate-“the manager of the children’s assets. One or more persons can hold both positions, but sometimes one person might be an excellent choice to raise your child while not good at handling money-or vice versa. Thus, you can name one person to take care of your children, and another person-or even a bank-to handle the finances. Naming the people you want gives you control (and helps avoid family squabbles). If you don’t designate guardians for your minor children, the determination of who will raise your children and handle their finances is ultimately in the Court’s hands.
The Executor is your “can do” person. It often takes more work than one imagines to handle a deceased person’s affairs. The Executor is responsible for gathering your assets, liquidating them if necessary, selling real estate, paying taxes, and ensuring that distributions to people named in your Will are completed.
Perhaps a Will’s most important function is to direct who will receive your assets after your death. If someone dies without a Will, who receives what is determined by statutes passed by the legislature, commonly called the “laws of intestacy”. You should know who would receive your assets by law, and if that is contrary to your wishes, you need a Will to alter the application of those laws to your situation.
While it may be uncomfortable to do so, you can “disinherit” someone in a Will, such as a child or a sibling, with one notable exception-in Pennsylvania, you cannot disinherit your spouse. While you can certainly attempt via Will to disinherit your spouse by directing that your assets be given to others, in Pennsylvania the surviving spouse has a right to claim property jointly held with the spouse plus one-third (1/3) of the deceased spouse’s estate.
Most people leave their property to their spouse, then to children or grandchildren. Assets can be willed to charities, churches or friends. In your Will, you can also leave specific items, such as vehicles, jewelry or real estate to people.
Is a Will always needed? If one spouse dies and the other survives, and all assets were jointly titled to the spouses or payable by contract (such as via life insurance) to the surviving spouse, there is generally no need to “probate” the deceased spouse’s Will with the Register of Wills. However, exceptions and glitches do occur, so never destroy a deceased person’s Will.
When a Will is prepared, it must be signed by the person who makes the Will, and it should be dated and witnessed by 2 people. Merely naming someone as Executor in a Will does not permit that person to carry out your wishes. After a death, the Will is presented for probate to the Register of Wills and the Executor must be sworn in. The witnesses must be sworn in and identify the deceased person’s signature. A more favorable practice is to have an Affidavit attached to the Will, providing notarization of the signatures of the person making the Will and the witnesses. This “self-proving” affidavit means the witnesses don’t need to identify the signature when the Will is probated, and only the Executor must be sworn.
It is wise to state in your Will that the Executor does not have to post bond. The “bond” is a surety bond which quite simply guarantees the Executor won’t take the assets and leave the State for the Caribbean, never to be seen again! The cost of a surety bond can be quite expensive, depending on the estate’s value. (In some cases, people don’t trust the person(s) they select as Executor, however, and actually want a bond posted to prevent infighting and/or stealing).
Remember, if you die without a Will, your property passes by intestacy, or the State’s way. If it’s your Will, its done your way.