The ways of wills, Part 1

• By Milt x_Zall
• Nov 01, 2001

The simplest way to ensure that your funds, property and personal effects will be distributed after your death according to your wishes is to prepare a will.

A will is a legal document designating the transfer of your property and assets after you die. Usually, wills can be written by any person over the age of 18 who is mentally capable, commonly stated as "being of sound mind and memory." Your state of residence may impose additional requirements.

Everyone Needs One

Although wills are simple to create, about half of all Americans die without one -- they die intestate. Without a will to indicate your wishes, the court steps in and distributes your property according to the laws of your state.

Wills are not just for the rich; the amount of property you have is irrelevant. A will ensures that what assets you do have will be given to family members or other beneficiaries you designate. If you have no apparent heirs and die without a will, it's even possible the state may claim your estate.

Having a will is especially important if you have young children because it gives you the opportunity to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children.

Elements of a Will

Here are the basic elements generally included in a will:

* Your name and place of residence.

* A brief description of your assets.

* Names of spouse, children and other beneficiaries, such as charities or friends.

* Alternate beneficiaries, in the event a beneficiary dies before you do.

* Specific gifts, such as who gets your auto or residence.

* Establishment of trusts, if desired.

* Cancellation of debts owed to you, if desired.

* Name of an executor to manage the estate.

* Name of a guardian for minor children.

* Name of an alternative guardian, in the event your first choice is unable or unwilling to act.

* Your signature.

* Witnesses' signatures.

Naming a Guardian

Two of the most important items included in your will are naming a guardian for minor children and naming an executor.

In most cases, a surviving parent assumes the role of sole guardian. However, it's important to name a guardian for minor children in your will in case neither you nor your spouse is able and willing to act. The guardian you choose should be over 18 and willing to assume the responsibility. Talk to the person ahead of time about what you are asking.

You can name a couple as co-guardians, but that may not be advisable. It's always possible the guardians may choose to go their separate ways, and a custody battle could ensue.

If you do not name a guardian to care for your children, a judge will appoint one, and it may not be someone you would have chosen.

Naming an Executor

An executor is the person who oversees the distribution of your assets in accordance with your will. Most people choose their spouse, an adult child, a relative, a friend, a trust company or an attorney to fulfill this duty. You should expect your estate to pay an independent executor for this service.

If no executor is named in a will, a probate judge will appoint one. Probate refers to the legal procedure for the orderly distribution of property in a person's estate. The executor files the will in probate court, where a judge decides if the will is valid. If it is found to be valid, assets are distributed according to the will. If the will is found to be invalid, assets are distributed in accordance with state laws.

Responsibilities usually undertaken by an executor include:

* Paying valid creditors.

* Paying taxes.

* Notifying Social Security and other agencies and companies of the death.

* Canceling credit cards, magazine subscriptions, etc.

* Distributing assets according to the will.

Next Week

Preparing a will.

Zall is a retired federal employee who since 1987 has written the Bureaucratus column for Federal Computer Week. He can be reached at [email protected].