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A Last Will and Testament is a legal document that is used to express an individual’s wishes regarding his/her estate assets and what should be done with them upon the Testator’s (creator of the Will) death. Gifts made in a Will may be general or specific and may be made to as many different beneficiaries as the Testator wishes. Along with serving as a vehicle for making gifts of estate assets, a Will is the only opportunity the parent of a minor child has to indicate who the parent would want to serve as Guardian for the minor child if one is ever needed.
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A common myth is that you do not need a Will until you are “older” or until you have achieved sufficient financial success. The simple truth is that every adult can benefit from having an estate plan in place without regard to age, marital status, or net worth. At a bare minimum, executing a Will ensures that the state will not determine what happens to your estate assets and will avoid the possibility of expensive – and potentially destructive – litigation after your death.
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If you die without a Will in place, you will leave behind an “intestate” estate. If you die intestate, the state decides how your estate assets are distributed using the state intestate succession laws. Usually, this means that only close relatives will inherit from the estate in most cases. You also give up the ability to decide who oversees the administration of your estate when you die intestate.
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One of the most common mistakes people make when creating a Will is to simply appoint a spouse, friend, or family member as the Executor of the Will without giving any real consideration to whether the individual is the best person for the job. The Executor of a Will has several duties and responsibilities, many of which are best carried out by someone with a legal and/or financial background.
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This is something that can truly only be decided after consulting with an experienced estate planning attorney; however, there are some common considerations when deciding whether a Will or a trust should be used. If your estate is small enough to qualify for small estate administration, and you do not have minor children (nor plan to have any soon), a Will should suffice. If, however, your estate is large enough that probate avoidance is a consideration and/or you do have minor children who will inherit from your estate, a trust is often the better choice to distribute your estate.
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After your death, any “interested person” can contest the validity of your Will. Contrary to popular belief, however, one of your heirs or beneficiaries cannot contest a Will simply because they are unhappy with the inheritance left to them (or lack thereof). Instead, a Will contest must allege, and eventually prove, a legal reason why the Will is invalid. The Executor of the Will must defend the Will during the litigation. Ultimately, if the Will is declared invalid, the court will look for a previous, valid, Will to use to probate the estate. If none is located, the state intestate succession laws will be used to distribute the estate. If the Will is upheld, the probate of the estate continues using that Will.
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In today’s electronic age, it is easy to find just about any DIY legal form you might need. Although it is understandable that you might see an opportunity to save time and money by using one of these forms, the reality is that you are more likely to cost your loved ones a considerable amount of unnecessary time and money when it comes time to probate your estate. DIY Will forms are notorious for having mistaken, errors, and omissions that lead to protracted litigation during the probate of an estate. Your Last Will and Testament is something you want done right – the first time. To make sure that is the case, work with an experienced estate planning attorney during the creation and execution of your Will.
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Contact Us
For more information, contact an experienced Maryland estate planning attorney at Sinclair Prosser Gasior by calling (410) 573-4818 to schedule an appointment.
