The vast majority of Americans do not have a will or a trust. If they died today they would leave the distribution of their assets to the state. Without a doubt this represents poor stewardship. Most people recognize the need to have a will, but they never get around to having one written. A great many people had a valid will at one time, but either the witnesses have died or the state laws have changed, invalidating their wills.

Regardless of the reason, the simple truth is that if your will cannot be probated, or proved, in court, it is worthless. The state agency assigned to handle intestate (having no legal will) properties will divide them among the surviving heirs as the agency sees fit, after extracting probate costs, state inheritance taxes, and federal inheritance taxes. Rather than spend a few hundred dollars in attorney costs to have a will prepared, many of these estates will spend several times that in court costs before the assets are distributed. A simple will can avoid these problems. For more complicated estates consisting of larger assets, a trust may be more advantageous.

Most Asked Questions

To help you to understand what kind of estate planning is best for your family, we have addressed the 12 most frequently asked questions concerning wills and trusts.

1. Can I draft my own will without having to pay an attorney?

Yes, you can in most states. A self-drawn will is called a holographic will. The rules governing holographic wills vary from state to state, and you must thoroughly understand the laws of your state to ensure your will is proratable in court. For this reason, we would suggest that all wills be proofread by an attorney.

2. What if one of my witnesses has died or is unable to serve as a witness?

In order for a will to be probated, the judge will most likely require that the will be verified. If you used only two witnesses and the state requires two, both must be alive and able to substantiate the general contents of the will. It is always best to have three or four witnesses. If less than the required are available, you will need to amend your will with a codicil to have other witnesses verify it.

3. Should I keep my will in a safety deposit box?

If you do keep it in a safety deposit box you need to be sure that someone else has access to the box. Since a safety deposit box cannot be opened except by court order, the process can be lengthy and expensive. We suggest that you name your spouse and your attorney or accountant as authorized signatories.

4. Do I need a new will if I change residences from one state to another?

Possibly. You need to have an attorney in the new state review your will to be sure that it conforms to that state’s laws.

5. What if I own property in more than one state?

Generally, your estate is governed by the state in which you reside at the time of your death. Thus, a valid will drawn in your state will most likely control the distribution of assets in another state.

6. Do I need a will if my spouse and I hold all of our property in joint tenancy?

Yes, you still need a will. Joint tenancy means that the surviving tenant owns the property if the other tenant dies, but if there are assets owned outside the joint properties they will not be covered. You will need to check with an attorney to determine how jointly owned properties are handled in your state, in case of the death of one of the owners.

7. Who can I name as my estate executor?

You can name anyone you desire to act as executor of your will and estate. That person’s duties are to probate the will and distribute the assets according to the dictates of the will. Unless otherwise stipulated, many states require an out-of-state executor to post a bond. Some require that the bond be equal to the value of the estate. If you use a professional executor, there will be a fee involved. This can vary from an hourly fee to a percentage of the estate value. Any such fees should be clearly spelled out in a contract and attached to the will or trust.

8. What is a trust?

A trust is a legal contract to manage someone’s assets, before and after death. There are two basic types of trusts: a living trust and a testamentary trust. A living trust is drafted and implemented while the assignee is still living. Within a living trust is another division: the living trust can be either revocable or irrevocable. If it is revocable, the assignee reserves the right to modify the trust as long as the assignee is alive. If the trust is irrevocable, the trust cannot be changed once in force, nor can the property assigned to the trust be recovered by the donor. A testamentary trust becomes valid when the person dies.

9. What is the advantage of a trust, if any? 

A trust is not a public document, like a will, and it does not require probate, thus ensuring privacy. In many cases, assets held in trust could be free from estate taxes.

10. How much tax will my estate have to pay? 

That depends on the value of the estate at the time of your death. Through a marital deduction allowance, each spouse can leave the other an unlimited amount of assets. However, assets left to someone other than a spouse are subject to estate taxes.

11. When are the taxes due?

Usually within six months of death, the state will require an appraisal of the estate. The taxes are due and payable at that time, although in practice both the state and federal tax collectors will normally work out a plan to convert the assets necessary to pay the taxes so that the estate doesn’t suffer a severe dilution through a forced sale. Liquidity, or cash, in an estate is very important, since taxes must be paid in cash. Otherwise, assets must be sold to satisfy the tax obligation.

12. What if I change my mind after I make a will? 

You can change your will through the use of a codicil. The codicil is subject to the same laws of probate, so it is important that it be drafted properly. Attach all codicils to the original will and store them together. Remember that only the original will or codicil is probated, so protect them carefully.

Conclusion

Almost 80 percent of all American adults have no valid will. If they died, they would leave the distribution of their estates and guardianship of their children to the state; plus the estate would have to pay a sizable amount of taxes and fees. In order to ensure that the estate has to pay the least amount of taxes and that your estate is rightly distributed as you would want it to be divided, a will is mandatory.