We have heard that mantra for years. While it is true that a Last Will is part of most estate plans, it is often only a part.
A Last Will, sometimes called a Last Will and Testament, provides guidance to the Probate Court (or Magistrate in some Indiana counties) overseeing the probate of an estate (for more information about probate). It nominates a person to be appointed by the court as the personal representative to supervise the probate estate. One of the most common terms when talking about managing affairs after someone dies is “Executor.” Unfortunately, it is often over or improperly used. The Executor of an estate is a person nominated in a Last Will and appointed by the court. Sometimes, people who have a trust or go through probate without a Will refer to the person in charge as Executor. Legally, that is not the case.
As a side note, a person not officially appointed to be the Executor should be careful about using term. An Executor has a level of responsibility to the estate, which included beneficiaries AND CREDITORS! Unless you have authority and responsibility to creditors, you do not want them to think you do. They have a tendency to hold a person to that in order to try to be paid for outstanding balances.
A Last Will also gives the court guidance as to who you want to be an heir of a portion or specific item(s) in your estate. A properly prepared Will provides a staggered plan of distributing assets to specific people – My Son, John – or groups of people – My Then Living Nieces. The Will provides “What if…” directions if one of those named people is not living or disclaims a distribution. Ultimately, the Will provides a plan for the “residue” of the estate. The residue is any asset(s) which are not covered in the prior distribution plans or that slip through for one of several reasons.
Wills are a very old (think Old England) method of a person controlling the transfer of assets at his/her death. Because of that, they are a very formal document. There are specific components, particular order, and execution required to be found valid. Legally, the signing of a Will is a ceremony.
Lacking an essential piece might invalidate a Will. A Will must be found valid in order to be accepted by the Court. An invalid Will may cause an intestate probate estate. An intestate probate uses Indiana state law to dictate who your heirs will be. (Learn more about probate)
In some situations, probate may not be necessary, which means the Will is not used. In Indiana, an estate valued at less than $50,000, including a reduction by some specific expenses, qualifies as a small estate. A small estate does not necessitate the formality of probate. It is possible to have a very large estate avoid probate and leverage a small estate claim clean-up loose ends.
Planning is key. A specific plan designed to meet your needs is critical. We invite you to schedule a time to chat with us about your thoughts and concerns about how you can take care of those you love and the things you own. Schedule your complimentary consultation to learn more.