A will is a legal document that specifies the distribution of a person’s assets and estate after death. This is an official document that often requires the help of a lawyer to create, although some people use online tools to make a will. For a will to be legal, it requires official witnesses to sign the document. It may require a notary, too.
When your loved one passes away, a will specifies what should happen to the decedent’s estate. The will may also establish guardianship for the loved one’s children, dependents, or pets.
Legal Terms in a Will
As you begin setting up or reading a will, you will see some common legal terms.
- Testator: The testator is the person who owns the will. You may have someone write the will for you, but if you are the owner of the will, you are the testator.
- Executor: The executor named in the will carries out the intentions of the will for you after your death. The executor often manages the will through probate court.
- Probate: Probate court is the process through which the legal system ensures the validity of the will. Probate allows people to make claims against the estate and to question the intentions or contents of the will.
Parts and Requirements of a Will
Although you don’t have to follow a specific format for creating a will, the document should contain certain sections and fulfill certain requirements.
- Mental soundness: A will starts by explaining that you are of sound mind and are making these decisions freely.
- Naming an executor: The will names an executor or personal representative to oversee the distribution of the estate. This person may need several months to move the will through probate. Executors can receive compensation for their work in most states.
- Listing of assets: Your will should contain a list of all assets that are part of the estate.
- Naming beneficiaries: The will names each beneficiary, inheritor, or heir and the assets each person will receive. It’s important that the will uses accurate names for each person. Clearly describing each asset helps move the will through probate as smoothly as possible.
- Naming guardians: If you have minor children or if you are the primary guardian for grandchildren, your will should name any guardians for these children in case of your death.
- Burial wishes: Although it’s rare, some wills contain a section that specifies wishes for the funeral and burial.
Items That Are Not Part of a Will
If you own assets that automatically pass to a beneficiary upon your death, these items do not have to be part of a will.
Non-Probate Property
Certain types of assets qualify as non-probate property. These assets can include:
- Life insurance policies
- Retirement accounts
- Investment accounts
- Bank accounts
When you create these accounts or policies, you name beneficiaries in the setup documents in case of your death.
If you mention these items in your will or name the beneficiaries for them, this is for information purposes only. The beneficiaries named in the account or policy setup documents take precedence over whatever is in the will.
If you want to change the beneficiaries in these documents, you must contact the company that holds them. You cannot change them through the use of your will.
Jointly Owned Property
If you own property with another person, you’ll often include the right of survivorship with the property deed. This means that the property passes directly to the other owner or owners upon your death.
There’s no need to list this property in a will, other than for informational purposes. Naming beneficiaries in the will for jointly-owned property does not supersede the right of survivorship.
What Happens When Someone Dies Without a Will?
The legal term for passing away without a will is intestate. States have varying laws about intestate succession, which lists the close relatives who could inherit the decedent’s property. These laws list the relatives in order and show what percentages of the estate they can receive.
The purpose of the will is to spell out the desires of the decedent for the distribution of the estate. Without the will, the state has to anticipate the decedent’s wishes, which it does through intestate succession.
Rockpoint Probate Funding Offers a Cash Advance When Your Loved One’s Will Is Stuck in Probate Court
At Rockpoint Probate Funding, we understand the frustration related to having your expected inheritance tied up in probate court. Even when your loved one has a clear will, probate can take several months to unwind before your inherited assets are available.
You may need your inherited money now. We offer a cash advance option where you can receive some of your expected inherited assets as cash. To learn whether this option would be beneficial for your financial situation, call Rockpoint Probate Funding today at (323) 484-1063.
