Frequently Asked Questions About WillsWhat is a
Will? A Will is a written legal
document prepared for one person, called the testator,
which sets forth what is to happened after death to his
or her property, called the estate, and who is to be
named as guardian, to care for any minor children. The
Will appoint a person called the executor, who carries
out the instructions in the will. A person receiving a
gift from your estate is called the beneficiary. In general, a will becomes
effective only when it is signed by you and witnessed
with certain formalities. It will control the disposition
of your estate unless it is revoked. Since the property you own will change over time, or the persons you named as executor or beneficiaries may die, or you may simply change your mind about how you want your affairs handled after your death, an annual review of your Will is a good idea. What Happens
if You Die Without A Will? If you die without leaving a
valid Will, money and other property you own at death
will be divided and distributed according to
"interstate succession" laws of your state.
These laws divide all property between a few close
relatives according to a set formula, and completely
exclude, more distant relatives, friends and charities. These laws may not reflect your
wishes. If you are married and have no children, most
state laws, including Maryland, require your spouse to
share your property with your parents. There is even less
protection for unmarried couples. No state's intestate
succession law gives an unmarried partner any property. Intestate succession laws do not
deal with the question of who will take care of minor
children if both parents die or if the surviving parent
is unavailable, leaving it up to the courts and social
service agencies to appoint a guardian. Even though the
court has the ultimate authority to appoint a guardian, a
Will is the only way to let the court know who you want
to raise and educate your children. Every adult should have an
up-to-date Will. If you are married you and your spouse
will each need a will. It is not necessary to be a
citizen of the United States to prepare a Will.
Preferable., you should make the Will in Maryland if you
reside in Maryland, although Wills made elsewhere are
also valid. What are the
Age requirements to Make a Will? You must be of legal age to make
a valid Will. In most states, including Maryland, you
must be at least 18 years of age. You must be "of sound mind," that is, you must have the mental capacity to make a valid Will. Generally, this means that you:
When Should You Modify Your Current Will?
What are Guardianships and Trusts for Minor Children? A minor child must have an adult
guardian unless a court has declared he is legally
"emancipated." The determination of who is a
"minor" is a matter of state law. Maryland
declares that anyone under the age of 18 is a minor. Normally the surviving spouse
becomes the personal guardian of your minor child.
Parents. Should agree on who they want appointed as
personal guardian of their children, in case both parents
die simultaneously. In the case of divorced or
separated parents, the surviving parent will generally
have the best claim to be the guardian of their child,
although anyone may challenge a person's petition to be
guardian of a child. If the surviving parent is
unavailable, the courts will give great weight to the
preference contained in the deceased parent's Will. Minor children cannot own
property. This means that there must be an adult legally
responsible for supervising and administering property
owned by a child. Thus, you need to name a property
guardian for your minor children. Usually this is the
same person who has been named as the personal guardian
of the children. If you have substantial property
and you want this property to be managed on behalf of
your child beyond the age of majority (i.e., age 18 or
21) you need to leave your property in trust. If you
decide to establish a trust for your minor children you
must choose a trustee and determine the age at which the
property in the trust will be released to the
beneficiary. The trustee should almost always be the same
person as you chose as the children property guardian,
and usually will be the person you designated as both the
personal and property guardian. You should also name a
successor trustee, in case your first choice is unable to
serve. You also have the option of naming tow or more
people to act as co-trustees. What
Property Does Not Pass Under a Will? A Will does not dispose of
property which would pass to another by contract or by
operation of law. Common examples are: Certain jointly-owned property for example. A house, a car or bank accounts. Life insurance proceeds, which go automatically to the beneficiary you have named in the policy. A pension, where you have named
someone as beneficiary. You fully retain the right to do
whatever you choose with your property during your
lifetime, even if you have left the property to someone
in your Will. A bequest to someone only means that they
receive the property if you own it upon your death. Choosing your executor,
sometimes called the personal representative, is one of
the most important decisions you make when you make a
Will. The executor is responsible for taking your Will
through probate. The executor pays your bills and taxes
and distributes your property according to your
instructions. You should name a person you
trust who will see that your estate is settled quickly
and efficiently. Your executor does not have to be an
attorney or an accountant. Often, your spouse, an adult
child, or close relative, is appointed as executor. (You
may also appoint two co-executors.) Your executor can
always hire an attorney or an accountant if they need
help to settle the estate. You should name at least one
alternative executor in your Will. Then, if your first
choice cannot serve, your next choice can be appointed.
If you do not name an alternative, and your named
executor cannot serve, the court will appoint someone to
serve. |