Frequently Asked Questions

Your state’s laws of descent and distribution will decide who inherits your property if you pass away intestate (without a will). State rules may differ, but generally speaking, your spouse and children would receive the distribution, or other family members if there were none. A state’s plan frequently includes safeguards for specific beneficiaries, especially minor children, and represents the legislature’s best judgment as to how the majority of people will distribute their estates. Your actual preferences may or may not be reflected in that plan, and some of the built-in safeguards may not be required in a happy family environment.You can change the state’s default plan in a will to fit your specific preferences. Additionally, it gives you the freedom to make a variety of choices that are outside the scope of wide and general state default laws.

In general, you are free to dispose of whatever property you hold at the time of your death however you see fit, but a will specifies how it will be distributed. However, compelled heirship rules in most jurisdictions that forbid you from disinheriting a spouse and, in some situations, children may limit your ability to dispose of property as you see fit. For instance, spousal rights of election laws allow a spouse to assert a specific stake in your inheritance regardless of what your will (or other legal documents addressing the distribution of your property) specifies. These laws are present in numerous jurisdictions.Your property that is subject to beneficiary designations or titling and thus passes outside of your probate estate is not governed by your will. Among these assets are items with joint ownership and right of survivorship, accounts payable on death, life insurance, retirement plans and accounts, and employee death benefits. Unless they are receivable to your estate under the terms of the beneficiary designations for them, these assets pass automatically to another person at your death and are not subject to your will.

Non-probate property, which includes some kinds of assets that pass to someone other than your estate upon your death by operation of law (title) or contract (such as a beneficiary designate), is not governed by a will. Real estate and other possessions with rights of survivorship, for instance, automatically pass to the owner who survives. Similarly, regardless of your will, an IRA or insurance policy payable to a specific beneficiary passes to that beneficiary.

Wills must be signed in the presence of witnesses and must adhere to specific procedures in order to be legitimate. Many states consider a will to be “self-proving” and allow it to be admitted to probate without the need for witness testimony or other supporting evidence if it is formally executed in front of witnesses and has all signatures notarized. Even if a will is finally determined to be legitimate despite execution flaws,

dealing with such a challenge may be expensive and challenging. The easiest way to handle a potential problem is to execute the will properly right away.

The formal legal procedure known as “probate” designates the executor or personal representative who will manage the estate and transfer assets to the specified recipients and recognizes a will. In order to ascertain whether a probate action is required, whether the fiduciary must be bonded (a requirement that is sometimes waived in the will), and what reports must be filed, it is a good idea to speak with an attorney. This is because state regulations vary. Contrary to what many sellers of living trusts and other goods imply, most probate proceedings are neither expensive nor drawn out.

The living trust is sometimes promoted as a tool that enables you to “skip probate” when you pass away. The procedure of administering your estate and transferring your possessions after death in accordance with the terms of your will under the court’s supervision is known as probate. Rarely is probate the disaster critics portray it to be. Even without the expense of creating a living trust, many different kinds of property commonly pass without going through the probate procedure. Among these assets are real estate, bank or brokerage accounts held in joint names with right of survivorship, life insurance or retirement plan funds that pass to a designated beneficiary by designation rather than in accordance with your will.

Trusts are legal agreements that can offer extraordinary flexibility for the ownership of some assets, allowing you and your successors to accomplish a variety of important personal goals that are impossible to accomplish in any other way. The keeping of property by a trustee—who may be one or more people, a corporate trust business, or a bank—in accordance with the terms of a written trust instrument for the benefit of one or more parties known as beneficiaries is referred to as a trust. The beneficiaries are the equitable owners of the trust property, while the trustee is its legal owner. A single trust might have more than one beneficiary or trustee.