NOTICE: These FAQ pages provide informal guidance and should NOT be relied upon as legal advice. Submit a Client Intake Form or contact our office if you need legal counsel.
- Any parent with young children should have a Will to name a Guardian and to create a Minor's Trust for those children.
- Anyone who wants their assets distributed differently than the default inheritance law should have a Will. Examples include: to disinherit a family member, to keep family wealth within the family bloodline, or to provide for a non-marital partner.
- Anyone with potential estate tax issues should have a Will with estate tax minimization features.
Your Executor is the person in charge of your estate once you die, and is personally liable for his actions as Executor. Your Executor should be familiar with you and your assets; should be financially savvy enough to handle collecting and distributing large amounts of money or other assets; and should have enough time to handle this often time-consuming responsibility. Typically, your Executor should be a close family member, a trusted friend, your attorney, or your bank.
The Guardian of your children is the person responsible for raising your children if they are still minors when you die. When choosing the Guardian of your children, some important characteristics to consider include:
- Whether the person is too young (is he mature enough to raise your child?).
- Whether the person is too old (is he physically and mentally capable of raising your child?).
- Whether the person genuinely cares for your children.
- Whether the person has children of the same age as your children.
- Whether the person lives somewhere that would require your children to relocate.
- Whether the person has enough time and career flexibility to accept the responsibility.
- Whether the person is willing to accept the responsibility.
Typically, the Guardian of your children should be a close family member or a trusted friend.
The Trustee of your Minor's Trust is the person in charge of the trust for the benefit of your minor children, and is personally liable for his actions as Trustee. Your Trustee should genuinely care for your children, and should be financially savvy enough to handle investing, managing, and distributing funds for the benefit of your children. Typically, your Trustee should be a close family member, a trusted friend, your attorney, or your bank.
A Will is a legal document that directs how to distribute your property upon your death. A Will also nominates persons for certain important roles, such as your Executor, Guardian, or Trustee.
A Will directs how to distribute your property upon your death by making specific gifts, general gifts, and residuary gifts.
- Specific gifts are gifts of particular items or assets, such as your diamond ring, your car, or your house.
- General gifts are gifts of certain dollar amounts, but from no specific source.
- Residuary gifts are gifts of anything not already gifted by specific or general gift, usually in the form of a percentage. For example, 50% of my residuary to my spouse, 25% to my daughter, and 25% to my son.
A Will may also create trusts that come into existence upon your death, such as Minor's Trusts to manage funds for your minor children or other trusts to minimize estate taxes, such as Credit Shelter Trusts, Disclaimer Trusts, QTIP Trusts, or QDT Trusts.
A Will nominates persons for certain important roles, such as your Executor, Guardian, or Trustee.
- A Will does NOT control any assets where you have named a beneficiary, such as life insurance policies, annuities, retirement accounts, brokerage accounts, or bank accounts.
- A Will does NOT control any real estate you own as tenants by the entirety (husband and wife) or as joint tenants. In each of these cases, the surviving spouse or surviving joint tenant automatically owns the real estate upon your death.
- A Will does NOT control trusts or living trusts, except in special circumstances.
- A Will does NOT make any current gifts. Your Will only takes effect upon your death.
- A Will does NOT grant any current Powers of Attorney. Your Executor only has authority upon your death.
- A Will does NOT make any healthcare directives.
- A Will does NOT make any burial instructions.
An Executor is the person named in your Will who will be in charge of your estate upon your death. Your Executor must probate your Will, or hire a lawyer to do so. Your Executor is also responsible for gathering and managing your property, paying bills and taxes, and distributing your assets to your beneficiaries. Your Executor is personally liable for his actions as Executor. Your Executor is entitled to a fee payment from the estate for his services.
There are two types of Guardians: Guardians of the Person and Guardians of Property.
- The Guardian of your child's Person is the person responsible for raising your child and for his well-being.
- The Guardian of your child's Property is the person responsible for prudently managing, investing, and distributing any funds owned directly by your child. The Guardian of your child's Property is required to file annual reports with the Court to account for all of your child's funds.
A Minor's Trust is a trust created under your Will to govern funds your leave to your minor children. The trust only comes into existence upon your death.
Without a Minor's Trust, any funds you leave to your minor children will be controlled by the Guardian of the Property of your children, who must file annual accounts with the Court to report all spending. A Minor's Trust helps to avoid that burdensome requirement.
The Trustee of your Minor's Trust is responsible for prudently managing, investing, and distributing your children's funds. The Trustee will make income payments directly to your children or to the Guardian of the Person of your children. The Trustee of your Minor's Trust is personally liable for his actions as Trustee.
The Trustee of your Minor's Trust is entitled to a fee payment from the trust for his services.
- When you start having children, you should execute a Will to name a Guardian and to create a Minor's Trust for those children.
- When you determine that wish to keep certain assets or family wealth within your family's bloodline, you should execute a Will to prevent your assets from being distributed under default inheritance law.
- When you decide to disinherit a family member, you should execute a Will to prevent your assets from being distributed to her under default inheritance law.
- When you enter a committed relationship with a non-marital partner, you should execute a Will to prevent your assets from being distributed under default inheritance law.
- When your personal net worth approaches or exceeds one million dollars, you should execute a Will to begin exploring estate tax minimization strategies.
You should update your Will when any significant familial or financial events occur in your life, such as:
- Getting married.
- Beginning divorce or separation proceedings.
- Acquiring or disposing of substantial assets.
- The death of your Executor, your Guardian, or your Trustee.
- The death of your beneficiaries.
In the absence of any of these significant events, you should review your Will about every four years.
You should store your Will someplace safe from fire and readily accessible by your surviving loved ones or Executor. There are generally three options for storing your Will:
- You may store your Will with your attorney. Most attorneys offer fire-proof storage, free of charge. If your Will is lost or destroyed while in your attorney's possession, you may still rely on a copy of that Will for probate.
- You may keep your Will in your possession. However, if your original Will is lost or destroyed while in your possession, you may NOT rely on a copy of your Will for probate (the law will assume that you intentionally destroyed the Will, thereby revoking it). If you decide to keep your Will, do NOT keep it in a safe deposit box, because the law requires a separate Court proceeding to open a deceased person's safe deposit box.
- You may file your Will with your local Court. Court records are easily accessible to the public, making it relatively easy for loved ones to find your Will after your death. However, this may create an undesirable history of your Will revisions in the Court records. The Court will typically charge a filing fee for this service.
- You need a Will if you are a parent with young children and wish to name a Guardian and to create a Minor's Trust for your children.
- You need a Will if you want your assets distributed differently than the default inheritance law. For example, when a young husband dies with no children, all of his assets go to his surviving wife. In many cases the young husband may want to provide for his parents, siblings, or other family members, as well.
- You need a Will if your personal net worth approaches or exceeds one million dollars, and you should begin exploring estate tax minimization strategies.
You need to name a Guardian for your children if you want to avoid conflicts regarding the custody of your children and if you don't want a Court to decide who should be the Guardian of your children.
You need to have a Minor's Trust if you wish to minimize the administrative burden on the Guardians of your children. Without a Minor's trust, the Court must appoint a Guardian of your children's Property, the person responsible for prudently managing, investing, and distributing any funds owned directly by your children. The Guardian of your children's Property is required to file annual reports with the Court to account for all of your children's funds. The preparation of this annual report, and the Court's review of the report, can be tedious and time-consuming.
A Minor's Trust is a trust created under your Will to govern the funds you leave to your minor children. The trust only comes into existence upon your death. The Trustee for your Minor's Trust is generally not required to make annual reports to the Court.
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