A Will is a document used to direct others how to handle your affairs and estate once you die. Wills typically address the disposition of your assets, payment of your debts, care and support of minor children and other dependents, and charitable contributions.

Generally, Wills are ambulatory (may be altered) and revocable during its maker’s lifetime. If changes to a Will are desired (divorce, marriage, children reach age of majority, acquisition of real estate) a new Will or Codicil (Amendment) is drafted. “Spendthrift” trusts are oftentimes included or added to control monies destined for young adults.

The content and complexity of Wills vary greatly. A Will can be “conditional” (i.e., depends upon the occurrence of some uncertain event, by which it is either to take effect or be revoked), “mutual or reciprocal” (i.e., husband to wife and vice versa), joint (i.e., signed by husband and wife) or other arrangement.

What Constitutes A Valid Will Suitable for Probate

Generally, any mentally competent adult can make a legal Will. The maker must not suffer from any condition which prevents him or her from understanding the full nature of the Will and the consequences of its provisions.

A Will generally must be in writing and must be signed by its maker, also known as the testator (male) or testatrix (female). Although not required by most states, we strongly encourage all our clients have the signing of their Wills witnessed by two other competent adults and a notary public to minimize any obstacles to probating (validating) the Will.

Many states will honor a Will not valid under that state's law but valid in the jurisdiction where it was made. Under New Jersey and Pennsylvania law, a Will is valid if executed (signed and witnessed) in compliance with the law of the state where the maker resided at the time of the execution of the Will or at the time of his or her death. Nevertheless, since people move frequently and often own property and other holdings in various jurisdictions, to avoid any problems we draft Wills, and, when possible, make sure they are signed and maintained in such fashion so that it will be valid even in states that have the most demanding requirements.

Personal Representative

The maker of a Will designates someone to honor his or her directions and requests, and to dispose of the maker’s property. This person or persons, also referred to as personal representatives or executors, should be a trusted friend or family member whose prior consent was obtained. It is also helpful, but not essential, if the personal representative or executor is a resident of your state.

A personal representative or executor may be required to collect and manage assets, sell assets, pay lawyers and accountants to handle probate, estate taxes or other expenses and file all required estate and tax returns. A personal representative is entitled to a fee as well.

It is advisable to name an alternate executor or personal representative in the event the primary person selected is unwilling or incapable to serve when needed.

Appointing a Guardian for Minor Children

A person with minor or dependent children can designate a trusted friend or relative in their Will to serve as a Guardian for those children or dependents. If a Guardian is not designated, and there is no surviving parent, the Court appoints a Guardian. This should be avoided since the person chosen by the Court, though usually a close relative or friend, may not be the person the parent would have chosen.

We often draft and include “Spendthrift” Trusts in Wills potentially involving minor or dependent children, to fund the maintenance (housing, education, etc.) of dependents, to shield assets from creditors and to protect and preserve assets against the improvidence or incapacity of its beneficiaries (i.e., children too young to be trusted with money).

It is important that the potential Guardian understands the provisions of the Will and consents to the responsibilities of being a Guardian. Also, it is wise to name an alternate Guardian should the primary Guardian be unwilling or unable to accept the responsibility.

Changing, Updating and Safekeeping Wills

The provisions of a Will are valid until they are changed, revoked, destroyed, or invalidated by the writing of a new Will. Minor changes or additions to a Will can be achieved by executing a codicil or amendment. Codicils must be written, signed, and witnessed in the same way as Wills.

Wills generally should be reviewed at least every two years and revised for major changes in tax laws or for personal events such as births, deaths, marriages, divorces, or significant changes in the size of the estate. It is also a good idea to review a Will if its author moves to another state, since the new state of residency may have different inheritance and tax laws.

We strongly recommend that our clients maintain possession of their original Will. We retain electronic copies for our clients, but most Courts still require original documents to probate or process the estate and significant costs can be incurred attempting to probate a copy of a Will.

Dying Without a Will

Adverse results can occur if you die without a Will. The law, rather than you, dictates both the persons to whom your property will pass and the division of your estate among those persons.

The distributions provided by law are inflexible and may not satisfy your desires as to distribution of your estate. In addition, the amount to be distributed to your children will require a cumbersome and costly legal guardianship if the children are minors at the time of your death. Additionally, survivors often wind up having to pay more taxes on their inheritance than they would have paid had there been a Will or other estate planning tool.

Therefore, to provide for surviving friends and relatives, or to support favorite causes or charities, a person should create a Will and plan for the distribution of his or her estate after death. With planning, an estate can be distributed as fairly as possible with as little tax burden as legally allowed.

What Property Will Pass “Outside” My Will

Proceeds from life insurance policies and retirement benefits will pass in accordance with the beneficiary designations and not under your Will. In addition, property held as joint tenants with right of survivorship accounts (e.g., joint bank or brokerage accounts with right of survivorship) will pass to the surviving account holder and not under your Will. Therefore, we routinely review our clients’ beneficiary designations and account agreements to be sure they are coordinated with their Wills.