There are a few things that the executor of a will should know. There are several different types of wills. Nevertheless, all wills are required to meet certain standards in order to be considered valid in a court of law. The person making the will, or the testator, must be at least 18 years of age and of “sound mind.” That basically means they must have legal capacity to create a will. The testator needs to select an executor to manage the will, explain how the property should be distributed after death, and sign and date the will in the presence of the required number of witnesses.
Understanding simple wills
Simple wills are most often used when all that is needed is direction on how to distribute simple assets from the estate to the beneficiaries. As long as the nature of the assets is relatively uncomplicated, a simple will is more than likely sufficient to do the job. Like all wills, a simple will must be in writing and should be typed instead of handwritten. The general elements of a will are: the testator’s name, address and marital status; and instructions as to which property goes to which beneficiaries. The executor for the estate should also be named, as well as a guardian for any minor children. The testator and the witnesses need to sign and date the will.
How testamentary trust wills are different
A testamentary trust will is different because it includes provisions that place a portion of your estate into a trust. Based on the terms of the testamentary trust, your assets are distributed to your beneficiaries, through the trustee who controls those assets. The most common example is a spendthrift trust, often used in cases where a beneficiary is considered to be financially irresponsible. A spendthrift trust allows the trustee to distribute the trust assets gradually and under certain conditions. The format of a testamentary trust will is often quite similar to that of a simple will.
The executor of a will should understand joint wills
Joint wills are often used by spouses who intend to leave their property to one another. The surviving testator will inherit everything on the deceased spouse’s estate. Then, when the surviving testator passes away, the remaining estate will be distributed to the couple’s chosen beneficiaries, pursuant to the terms of the will. One thing to remember is that a joint will cannot be revoked once the first testator dies. The format of a joint will is also similar to a simple will.
Living wills are very different from other types of wills
The purpose of a living will is entirely different from that of the three other types discussed here. The purpose of a living will is to provide detailed instructions about the type of medical treatment or life saving measures you want to be used if you become unable to communicate those wishes for yourself. For instance, your living will could specify that, in the event you become terminally ill and unconscious, you do not wish to be put on a feeding tube or a ventilator, even if you would die without those measures.
The executor of a will needs to be identified in the will itself
A necessary component of every will is the identification of a trusted individual to make sure the terms of your will are followed. The executor is responsible for guiding your estate through the probate process and ensuring that your property is distributed to your beneficiaries, according to the will. An executor can either be a professional or a family member or friend. If your estate is pretty straightforward, then a professional may not be necessary.
Deciding which property the executor of your will can control
The first step in deciding which specific property should be left to whom, is to make a list of everything you own. The next step is to eliminate all property or assets that are not required to go through probate in order to be passed on to your heirs. For example, retirement accounts and life insurance policies, which have named beneficiaries, are not required to go through probate before those beneficiaries can receive their share. Once you have a good idea about what’s included in your estate you can make specific bequests in your will. The more specific you make the terms of your will, the more straightforward and streamlined the probate process will be for your family.
Join us for a FREE seminar! If you have questions regarding wills, or any other estate planning needs, please contact the Schomer Law Group either online or by calling us at (310) 337-7696.
Scott Schomer, Estate Planning Attorney
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