What Is A Will? Does It Need To Be A Part Of Every Estate Plan?
A Will is a document that expresses a client’s wishes and desires after his/her death. The most basic function of a Will is to provide a listing of who should inherit a client’s property and assets after the client dies. A Will, until admitted to probate by the Surrogate’s Court, is really nothing more than a piece of paper that expresses a client’s desires. After a client dies, it’s the responsibility of the client’s nominated executor to offer the Will for probate in the Surrogate’s Court located in the County where the client resided prior to passing away. The Judge of the Surrogate’s Court will review the Will offered for probate and the probate petition submitted with the Will and decide if the Will is valid and can be given effect. If the Judge declares that the Will is invalid, then the Will offered is not given effect and cannot control the disposition of the client’s property and assets.
In addition to listing where a client’s assets should pass upon his/her death, it’s usually appropriate to have trusts built into a client’s Will, which trusts are called testamentary trusts. A common testamentary trust is what is known as a minor’s trust. The purpose of a minor’s trust is to ensure a minor or youthful child does not receive their inheritance outright, but, instead, receives incremental distributions of their inheritance during ages preselected by the client creating the Will. For example, a client can create a testamentary minor’s trust which provides that any child of the client will not receive any of his/her inheritance until the age of 35, and at age 35, the child will receive his/her full inheritance. Another way a testamentary minor’s trust can be structured is to provide for laddered payment to the child, for example the child will receive a third of his/her inheritance at age 20, another third at 25 and the remaining third at 30.
Another common testamentary trust is a testamentary supplemental needs trust. If a client has a child or beneficiary who is disabled and receiving government benefits, it’s rarely a good planning technique to leave this disabled person an outright inheritance. Any outright inheritance received by a disabled person will disqualify him/her from government benefits and entitlements, will force the disabled person to spend his/her inheritance down to $0.00 before reapplying and requalifying for these benefits and entitlements. In short, leaving a disabled person an outright inheritance tends to result in the inheritance being wasted. By employing a testamentary supplemental needs trust, however, the disability child/beneficiary can enjoy the benefits of receiving an inheritance without having to worry about losing his/her government benefits.
A third common testamentary trust is a marital trust, which is employed to ensure that a spouse from a second or third marriage receives sufficient assets/income during his/her lifetime, while also ensuring that the bulk of the client’s assets pass to the client’s children, and not to the spouse’s children, loved ones or beneficiaries.
Another function that a Will can serve is a client can nominate a guardian to care for his/her children if the client dies before the child turns 18. These guardianship clauses are frequently used by married couples when the couple prefers that one set of grandparents, and not the other, raise the child, if necessary, but the client is not limited to naming grandparents as nominated guardians; any suitable individual can be nominated as a minor child’s guardian.
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