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Wills

Wills are legal documents which only say where your property goes upon death. They do not affect your assets during your lifetime.

A will does not avoid probate.

Wills are documents authorized by state law. They ordinarily operate only on probate assets (assets held in your name alone) and do not take effect until your death. Wills may be used to dispose of small or large estates. They may be “simple” providing outright distributions or they may be “complex” containing an involved scheme of distribution or containing one or more “testamentary trusts,” to control terms and conditions of future distributions of assets. Since wills are authorized by the State, the legislature controls who may write a will, what may or may not be included in a will, and the terms and conditions which may be included, such as the qualifications of an individual or company to act as “Executor or Personal Representative.” To be given effect, wills must be submitted to a special court which has the duty of overseeing wills, trusts, matters of personal incapacity and certain other functions. This court is called the Probate Court and judicial proceedings are always involved. It determines which wills are to be admitted to probate and which will not, as well as the meaning of poorly drafted wills, such as those that individuals may attempt to write on their own. A person writing a will is called a Testator and upon death is called a Decedent. All wills are testamentary (they have no effect until death) in nature. Dispositions of assets are referred to as testamentary dispositions, which derive from, or into the traditional “Last Will and Testament” language we are all familiar with. An individual that passes away leaving a will is said to die Testate and one without a will dies Intestate. Wills are public in nature and anyone may go to the Probate Court to see the contents of your will and the assets you leave following submission to the Probate Court.

Wills do not allow for management of your assets if you become mentally incapacitated and cannot manage your own financial affairs. Refer to the discussion regarding Trusts.