Thy Will Be Done?
By: Joseph M. Scott, Esquire
Do you know where your assets will go upon your death? If you have a Last Will and Testament, you do. If you do not have a Last Will and Testament, and have avoided making a Will, rest assured that your assets will go to someone, and the results may surprise you. For example, if you die without a Will, spouses, children, parents and/or other relatives, may be able to stake a claim upon what you left behind.
The way to prevent your assets from getting into the wrong hands is simple: make a Will.
There are several things you should consider before having your Will prepared by an attorney. First, you should make a list of your assets and assign to each a value so that the attorney can easily ascertain the value of your estate. The value of your estate is important in determining the amount of, and type of, tax that will be assessed against the estate and/or your beneficiaries upon your death.
Disposing of personal property, i.e. houses, money, jewelry, is usually what first comes to mind when creating a Will. The person making the Will, called the Testator, should choose people to receive the property, called beneficiaries, as well as provide for an alternative beneficiary in case the first beneficiary dies before the Testator. Next, consideration should be given to any specific wishes you may have regarding your burial and/or funeral arrangements. Often people want to be buried in a particular fashion or in a certain place. This type of provision can easily be incorporated in your Will so that "your will be done."
Bequests to charities are often incorporated into Wills. In addition to the appropriate names and addresses of the charities, consideration should also be given to the specific use of the gift. An Attorney can be helpful in determining whether the charitable bequest is deductible for estate tax purposes by determining whether the charity qualifies as a qualified organization under Internal Revenue Code 501(c)
Consideration should also be given as to the person who will carry out your wishes under your Will. This person is called an Executor (male) or Executrix (female). The Executor's job is to collect all of the assets of the estate, determine whether any claims are being made against the estate, file the Federal Estate Tax Return, if any, file the New Jersey Inheritance Tax Return, and finally distribute the assets to the beneficiaries listed in the Will. For most married couples, the husband and wife name each other to serve as each other's Executor/Executrix. The job of the Executor/Executrix is very important, and may require some work, and therefore the Testator may want to determine whether the person they would like to serve as his/her Executor will agree to serve n that capacity.
For people with children, it may be necessary to name a Guardian in your Will. A Guardian is someone chosen for the sole purpose of providing a home life for the minor beneficiaries that will be consistent with the home life the minors enjoyed while their parents were alive. A Guardian differs from another fiduciary called the Trustee whose job is to manage the money left to any minor beneficiaries until such time as they reach maturity. Again, for both of these positions, it will be important to name an alternate in the event that the first person should predecease.
Many people when they have a Will prepared also instruct an attorney to prepare a Living Will. As its name suggests, a Living Will takes effect while the person is alive and is in essence a series of instructions to family members and health care providers as to what medical treatment you would like or dislike in the event you are incapable of communicating these wishes. Often a Living Will is referred to as an Advanced Directive. While many hospitals offer the opportunity to sign a Living Will prior to undergoing elective surgery, in the event that you are faced with an emergency situation, your consent may not be able to be obtained. Therefore, it is important to prepare the Living Will in advance of any emergency.
One final document often prepared at the same time as a Will is known as a Power of Attorney. A Power of Attorney is a written instrument which appoints an agent to act on behalf of the person in certain specified situations. A Power of Attorney can be general in its scope, or it acts that the agent may perform on your behalf. Powers of Attorney can take effect at any time, or upon your disability. That designation should be specifically set forth in your Power of Attorney.
Have you put off preparing your Will? What better gift to give yourself at the start of a new year than the peace of mind of knowing your final wishes will be granted. Should you decide to prepare a Will, a Living Will or a Power of Attorney, please contact us so that upon your death, Your Will Be Done.