A Will is your statement of what you want to happen after your death. It becomes effective upon your death. In it, you will have the opportunity to address the following:
Guardians – you will nominate the person(s) you would like to care for your minor children (or incapacitated adult children) if you and your spouse are both deceased. This person is called a Guardian. The probate court decides who the guardian will be, but in almost all instances the court will honor the person you nominate in your will.
Conservator – you will nominate the person(s) who you would like to oversee the finances you leave for your minor children (or incapacitated children). This person is called a Conservator. The probate court will make the decision, but most of the time the court will honor the person you nominate in your will.
Personal Representative – you will nominate the person(s) who you would like to close your estate pursuant to the terms of your will. This person is called a Personal Representative. The probate court will make the final decision, but most of the time the court will honor the person you nominate in your will.
Distribution of your Assets – you will list how you want your assets distributed. In this regard, there are two basic type of Wills:
- Pour-Over Will; and
- Will which creates a trust upon death.
Types of Wills
Pour-Over Will: a Pour-Over Will is used when you have a Living Trust. The asset distribution provision in your Will instructs your Personal Representative to transfer all your non-trust assets into your Living Trust (so they are distributed according to the Living Trust distribution provisions). Most of the time, using a Living Trust avoids the delays and cost of probating your estate.
Will with a Trust: a Will with a Trust contains provisions that create a trust upon you death. The Will distributes all of your assets into the Trust. This can be specific amounts, percentages, specific items (heirlooms), etc. This could include distribution to the following:
- Family – spouse, children, parents, siblings, etc. (if you don’t have a Living Trust).
- Charity – church, ministry, Red Cross, etc.
- Other – however you would like.
The weakness of a Will with a Trust is that the Will has to be probated – which takes a minimum of 5 months (and could take up to 3 years) and will likely cost more than using a Living Trust. So, we discourage the use of Wills with a Trust.
Our Recommended path for learning about Estate Planning (click the area of your interest to go to that page):