Common Estate Planning Questions

1. What is a will?
A: A will is a document that disposes of your property upon death. It also names important parties, such as executors of your estate, the trustee of trusts created under your will, and possibly guardians for your children.

2. When should I write a will?
A: While there is no one answer, you should have a will if you have accumulated assets and you care who will receive those assets after you die as well as if you have minor children who would need a guardian.

3. What happens if I die without a will?
A: Some of your property will pass according to beneficiary designations like life insurance proceeds and retirement plans. The rest of your property, your “probate property” will pass according to the laws of intestacy which means that your property will generally pass to some combination of your spouse, your descendents and possibly other family members. If you have minor children, the court will choose a guardian.

4. Can I write my own will?
A: Yes, if you comply with the requirements of your state to make a will valid, however it is always a good idea to consult with an attorney so that nothing is overlooked.

5. How does someone challenge my will?
A: There are three main reasons that a will can be challenged: 1) you were under duress or undue influence at the time of making your will; 2) you were incompetent or unable to understand the results of your will when writing it; 3) your will does not meet the statutory requirements to make it valid.

6. How can I change my will?
A: You can simply write a new one explicitly revoking all previous wills or you can add a supplement, called a codicil, to your existing will in the same manner you used to create a will.

7. What is a trust?
A: A trust is a legal arrangement whereby property interests are held by one person for the benefit of others and managed by a trustee. A trust can be either a testamentary trust or a living trust. A testamentary trust has no effect until death and is generally used when your beneficiaries are minors, or when you do not want your beneficiaries to inherit your estate outright. A living trust can be either revocable or irrevocable. If the trust is irrevocable, the party creating the trust relinquishes all ongoing control over the disposition of the property placed in the trust and the income from it.

8. What other options should I consider?
A: Everyone’s estate planning needs are different. Depending on your particular priorities about control and distribution of your assets there are many approaches to take. One must not forget the importance of naming a durable power of attorney as well as a health care directive but ultimately, the more planning and thought given these matters the better.