Making a Will: The First Step in Estate Planning

By on 2-18-2015 in Probate

While departing from this life is one future event that everyone will experience, not all who face death are able to make sure that the financial future of those they will leave behind is secure. It is a fact that only a small percentage of American families can claim having an enormous wealth, but every family, definitely, has something of value which it holds dear and important. It can be an ancestral house or one recently acquired, a piece of antique furniture, a vehicle, jewelry, bank account, life insurance, a pension plan, a small piece of land, a small business, a painting, or anything to which value may be assigned. However, unless a person, before death, was able to clearly express through a will his or her intent of leaving a greater part or all of his/her properties or estate to someone, then it shall be the court which shall decide who will inherit the properties left behind. This authority of the court springs from the Law of Intestacy and this law follows a predefined plan of distribution which is based on the laws of the state where the owner of the estate resides (despite some variations in the Law of Intestacy in a number of states, there are some patterns that are akin to all).

Thus, failure to draft a will shall move the court to make the following decisions (with consideration to the status of the property or estate owner):

  • Single without child – the court shall grant all properties and assets to the parents. However, if the parents die before the owner does, then the heirs that the court will name are the property owner’s siblings.
  • Single, but with child – properties and assets go to the child (if there is more than one child, then everything will be distributed evenly to the all children).
  • Married without child – while some states would name the spouse as the sole inheritor, other states would give only a third or half of the properties to the spouse, while the remainder shall be awarded to the owner’s parents or siblings (but only if the parents predecease the owner).
  • Married with child – a third or half of the properties will be given by the court to the spouse, while the remainder shall be placed under the child’s name (or equally distributed among the children if there is more than one child).

In instances where the estate owner has more than one child and intends to leave a bigger share of the estate to his/her child, who is married and also has children, this can be made possible only if such intent had been stipulated in his/her will.

According to the website of Peck Ritchey, besides being able to pass on to a loved one a testator’s (the person making the will and, therefore, the owner of the estate or properties that will be distributed to all heirs) properties, the testator, through his/her will can also specify the amount of inheritance each heir will receive. And, if ever any heir challenges the validity of the will through litigation, then all legal documents and proofs that would show that the will is authentic and that the testator was clear in mind when he/she made the will, as well as the defense on the will’s validity to be attested to by the estate planning lawyer (whose services the testator hired to make the will legal), are all in place to subdue any challenge.

There are many other steps and documents that a testator will need to go through and prepare, respectively, as the will is only the first step in the estate planning process.

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