Baldwin County Wills and Trusts Attorney – Last Will and Testament
The need for a will is what brings most people to estate planning. Everyone needs a will. Some individuals may need more complex planning in addition to the will, but the will is an indispensable element of the estate plan, even if the will is only in place as a back-up mechanism.
What Is a Will?
Although there’s generally more to it, at a minimum a will is a set of instructions as to what will happen to your property on your death. The will also serves as the legal document to carry out the property transfer. The will may also:
Designate a person to carry those instructions (the executor or personal representative).
Grant specific powers or limitations on authority for how the executor carries out the instructions
Waive the requirement for the executor to provide the court with a bond or an inventory of the estate
Designate guardians for minor children
Provide instructions for how estate taxes will be paid
Who Can Be the Executor of the Estate Named in the Will?
The executor is the person responsible for carrying out the instructions in the will. The executor will take control of the estate property and preserve it, notice potential creditors of the estate either directly or through the publishing of a notice to creditors, negotiate and satisfy any claims from creditors of the estate, hire professionals such as accountants or appraisers to perform services for the estate if necessary, in some cases make decisions about whether assets are kept or sold in exchange for cash, and distribute the estate property to the heirs of the estate according to the instructions in the will.
The executor must be 19 years of older, and must not be a person who “has been convicted of an infamous crime, or who, from intemperance, improvidence or want of understanding, is incompetent to discharge the duties of the trust.”
How are Beneficiaries Designated in a Will?
There are two common ways to designate a gift in the will. A specific distribution is a gift of a certain asset such as a piece of property, a car, the contents of a bank account or a specific amount of money. A gift in the will may also be designated as a general distribution of a proportional share of a certain asset, the entire estate or the residue of the estate. For example, the entire estate may be left to “my children in equal shares.” The residue is the portion of the estate remaining after the specific distributions and all costs of administration are paid. When most people make their will, it’s almost impossible to know what they will own at their death. Therefore, with the exception of large assets such as a house, a car or a boat, the more practical way to make a gift to multiple people is to give each person some proportional share in the residue – everything left over, whatever that may be.
Do I Need a Will If I Have a Trust?
As stated in the first paragraph, the will is an indispensable element of the estate plan, even if the will is only in place as a back-up mechanism. For those who set up an estate plan using a trust to avoid probate such as a revocable trust or a living trust, there should also be a pour-over will in place as a back-up mechanism. With trust planning, assets must be moved into the trust or have a beneficiary designation to avoid probate. Sometimes with trust planning, assets get overlooked, are acquired later and not put into the trust, or a beneficiary designation fails. The pour-over will is in place as a back-up to move any probate assets into the trust – to pour them over to the trust. After the assets are moved into the trust, they are subject to administration according to the terms of the trust.
The Law Office of Brenton C. McWilliams is an Estate Planning, Elder Law and Probate Law Firm serving clients in Baldwin County including our local cities of Orange Beach, Gulf Shores, Foley, Elberta, Summerdale and Robertsdale. For a consultation please call (251) 215-9275 or request a consultation on the consult request page.