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NS-When A Will Is Necessary-Final
Jan L. Warner & Jan Collins

In the past two weeks, we have been addressing the issues of a couple in their 60s who were unsatisfied with the lawyer who prepared their life documents (wills, etc.). They wanted to know exactly what they needed and how to find a decent lawyer.

We began by covering the issue of wills, and last week we covered probate estates. This final column will fill in the remaining blanks concerning wills.

If you have minor children, you should always name a trusted person as guardian and/or bank trust department trustee of them and their property. In all cases, both primary and alternate appointments should be made -- just in case your primary appointee cannot or will not serve. It is important to remember in divorce and separation situations that you can express your choice as guardian for minor children, but the court is the final arbiter of the children's best interests. However, you can choose a person other than your estranged spouse as trustee of your children's funds.

When preparing your will, you should name an executor or personal representative (usually the other spouse, if you are not estranged or divorced) along with an alternate if, for some reason, your first choice can't or won't act. After providing for the payment of debts and taxes, the will generally includes "specific bequests" of property -- such as, "I leave my baby grand piano to my niece, Janice." It is wise to add wording: "If I own this property at my death." So if you sell the baby grand and do not change your will, Janice will not be in position to litigate the fact that she is entitled to the value of the baby grand piano.

After making specific bequests, you will dispose of the remainder of your estate. Called the "residue," which includes everything that remains after payment of debts and taxes and distribution of specific devises. Generally, if you are married, the residue would go to your spouse if he/she survives you and, if not, to your living children either "in equal shares." Should one of your children die before you, you can provided either that 1) that child's share lapses and is divided among your living children or 2) that child's share goes to his or her children -- called "per stirpes" in the law. This choice is yours.

What if the recipient of a specific bequest dies before you? You should provide for either a contingent beneficiary or provide that the specific property should go into your residuary estate.

Since it is possible for you and a beneficiary to die simultaneously, you should not only determine and choose the guardian, but also include a "common disaster" clause.

Since a will is a formal document that expresses the final wishes of the "testator" about disposition of his/her property, each state has certain requirements for the will to be valid. The maker of the will must have what is known as "testamentary capacity" -- meaning that he/she must be of sound mind, understand the objects of his/her affection, know his/her property and understand where he/she wants the property to go.
Although some states allow handwritten wills where there are no witnesses, the majority of states do not allow these types of wills.
Since no written changes to the original will are allowed, if you wish to amend your will, you may use a "codicil." This separate paper should refer specifically to the original will and be signed with the same formality as a will.

-- If you are married, although estranged, and die without a will and have no children, your surviving spouse will receive a third to a half of your estate, and the remainder will go to your surviving parents or, if they are deceased, to your siblings.
-- If you die without a will as a single or divorced parent, generally speaking, state laws provide for your estate to go to your surviving children; however, this could be a problem if any of your children have special needs or disabilities. Remember: If you are separated, but not divorced, and die with children, your estranged spouse will be entitled to a share of your estate just as if you have been living together -- that is, unless your state law provides differently.
-- If you die without a will as a single person with no children, generally speaking, your parents (if alive) will receive your assets. If both parents are deceased, then your estate will generally go to your siblings. It's important to remember that if either or both of your parents are disabled or are in a nursing facility, receipt of assets from your estate could very well disqualify them from some or all of their benefits.


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