A will is a written document outlining disposition of property of the person making the will, known as the testator. Wills have been used for hundreds of years and as such is the fundamental estate planning tool familiar to most. However, surprising too many, a will is not effective unless and until the will is probated in the Superior Court. Only in the smallest estates, typically under $150,000 can probate of will be avoided.
Due to the expense, lack of confidentiality, time and formality of probate, rarely is a will the sole component of even the most basic estate plans. Rather, in the fundamental plan a will or a pour over will is used in conjunction with a revocable trust. In this situation the majority of your property would be placed in a revocable trust during life and upon death that property which was not placed in the trust would be “poured over” into the trust and administered outside of probate.
Considerations going into making a will include the following:
- Are there any gifts of specific property to be made
- Who will receive the balance of the estate or residue
- Providing for minor children
- What happens in the event any of the recipients predecease you
- Who should be appointed as the personal representative also known as the Executor/Executrix
- Should the Executor/Executrix be required to post a bond for security
- Considering specific gifts, are there sufficient assets remaining to cover expenses and taxes
Wills range from the simple to the extremely complex containing trusts and advanced tax planning. Only after careful consideration of all relevant facts can an appropriate will be selected and then incorporated in the overall estate plan.