A Will is a formal document that provides the court with guidance on how to distribute assets. A will outlines for the Personal Representative the last and final wishes of the estate. Most assets are already disposed prior to probate of the Will by joint tenancies, beneficiary designations or Trust governed property. However, any assets not flowing directly to another individual are still included in the probate of the will. The will is an important document telling the Personal Representative how to distribute tangible personal property, Real Property and the Residue of the estate.
In any will, there are one to two major roles to consider; the Personal Representative, and for parents of young children, a successor Guardian. Discuss the function and responsibilities of these two individuals with your will attorney.
An Executor, formerly called the Personal Representative, is a pivotal role. The Personal Representative is responsible for gathering assets and paying any expenses of the estate. Additionally, the Personal Representative must deliver specific gifts made by the decedent to another individual or charity. When an asset is not part of the estate, the Personal Representative must make a reasonable effort to carry out that final wish. The Personal Representative has authority to enter into agreement and defend against claims. Lastly, the Personal Representative can perform any other function necessary for administration of the estate. The Personal Representative has both great power and responsibility. Discuss this important decision with your will attorney.
For parents of young children, the most important function of the Will is choosing a Guardian. The most frequent delay in drafting a will stems from this difficult decision. An Attorney can help guide this decision by talking through goals and values when choosing a Guardian. As a parent myself, this decision was equally difficult to make. Specific intent can be written into the will and considered with respect to a Guardian. By example, how a subsequent marriage and/or divorce would change that designation. Also, whether the Guardian will need to live at a specific location, etc. Remember, this plan can always be changed by a later document.