A will is a document that gives instructions on how you want certain things to be carried out after your death. A will would name the beneficiaries (spouse, children, family member, friends, charitable organizations, etc.) who will receive your assets after your death. If a person dies without a will, the laws of succession where the decedent lived will govern how the property will be distributed. Dying without a will is known as dying “intestate”. You have no say over who receives your assets and may leave your heirs dealing with the court system to sort out who receives what.
In general though, the laws of succession will leave your property to your spouse and kids but the ratio of distribution may vary from State to State. If you do not have spouse and children, then property may go to your nearest kin which also varies from State to State. Thus, if one wants to dictate how the property is to be divided among his survivors, then it is necessary to make a will.
A will may be important for some people with young children because a will is the best place to designate the guardian of your minor children.
A will also names an executor who will be tasked carrying out your final wishes. An executor would normally collect and manage the decedent’s assets, pay debts, and, with the court’s approval, distribute the assets to the beneficiaries named in the will. If you want a particular trusted person to carry out your final wishes, then making a will is necessary in order for you to name and designate that person as your executor.
In general, the will only covers assets that are titled in your name at the time of your death. However, not all assets are included. The assets that are not affected by a will includes the following: (1) Life insurance proceeds are paid directly to beneficiaries designated in the insurance policy; (2) retirement plans assets such as 401(K) and IRA are transferred to whomever you designate as beneficiary in the plan documents; (3) assets owned in joint tenancy will pass to the surviving joint tenant upon your death; (4) assets held in Living trusts are transferred to the named beneficiaries in the trust document; (5) Your spouse’s half of the community property still belongs to your spouse and is not affected by your will.
A will can be changed or revoked at any time. It should, in fact, be reviewed periodically as your estate may not be distributed according to your wish if it is not up to date when you die. You may also establish a new will and, in doing so, revoke your old will. When there are changes in your family such as marriage, divorce, births, deaths then it may be time to review your previously made will to update the changes in your family life. Likewise, it is also necessary to periodically review your existing will when there are significant changes in the value of your assets, or when it is no longer appropriate for your proposed guardian or executor to act in that capacity.
For some people, a will may still be useful even if they already have a trust. A trust is a legal document that lets a person put conditions on how assets are distributed after death and it lets them minimize gift and estate taxes. Most trusts, however, deal only with specific assets such as a piece of property, but not necessarily all the assets of an individual. Hence, a will, may still be necessary for all other assets that are not included in the trust.
(DISCLAIMER: material presented above is intended for informational purposes only. It is not intended as professional advice and should not be construed as such. Rey Tancinco is a partner at Tancinco Law Offices, a professional corporation with offices in San Francisco, Vallejo, and Manila. The law office website is at: tancinco.weareph.com/old. Rey Tancinco can be contacted at (800) 999-9096 or (415) 397-0808 or via email at: attyrey@tancinco.com
