By Beth A. McDaniel

 

 

A Will is an optional legal document. In its absence, state law determines asset distribution and who has standing to be appointed as administrator of the estate. Nevertheless, a current Will provides substantial value: 

• It allows nominating your preferred executor.
• It allows selection of beneficiaries (including charities and non-family members)
• It provides an opportunity to nominate a guardian for any minor children; and
• It allows disposition of personal property according to your wishes.

 

A Will offers peace of mind to surviving loved and a path forward. Further, a Will can address unforeseen circumstances:

• It can protect a beneficiary’s share, should the beneficiary become disabled after the Will is executed.
• It can give your personal representative discretion to hold a beneficiary’s share in trust if the executor determines it is in the beneficiary’s best interest due to circumstances like bankruptcy, pending divorce, incarceration, chronic homelessness, or substance abuse.
• It can provide direction for handling a beneficiary’s share if the beneficiary is missing (versus having to wait seven years before the beneficiary can be declared dead).
• It provides an alternate distribution plan, should a key beneficiary predecease, or if the first nominated personal representative is unable or unwilling to serve. Likewise, a Will can state those individuals whom you would not want to serve as personal representative under any circumstances. 

 

Additionally, a Will can create opportunities for estate tax planning opportunities for the survivor spouse.

 

In our state, a valid Will must be executed in the presence of two disinterested witnesses. If there was only one witness, or one of the witnesses is ‘interested’ in that he or she stands to gain more under the Will than he or she would have otherwise been entitled if there were no Will, the Will is invalid. Of course, a draft Will found on a computer is not a valid Will.

 

It is important to have a Will even if you anticipate all your property will pass under a Living Trust or via beneficiary designations. Keep in mind that under state law, disinherited relatives who would have otherwise inherited had you not had a Will are entitled to notice of the probate proceedings and thus can potentially contest’ the Will.

 

The original Will should be stored in a safe place and the named personal representative should know its location. While it is possible in our state to admit a copy of a Will to probate, it involves additional burdens, such as obtaining written statements from the witnesses to the Will and approval from those named in the Will before it can be submitted to probate. Thus, safeguarding the original Will is vital.

Safe places to keep the Will include a safe deposit box at the bank (with the nominated personal representative as a signer on the box), home safe, or in the same location as other important papers. Some older law firms store their client’s original Wills in vaults, but this is less common.

 

Alternatively, in our state, it is possible to ‘store’ original Wills with a county Superior Court. Here, for a small fee, the Court will store your Will in a sealed envelope. During your lifetime, you (and only you) can view or remove your Will without a court order. Following your death, upon presentation of a certified death certificate and the required fee, the Will can be converted to a public filing, viewable by everyone and available for probate. Probating the Will in another state or county will require a court order to release the Will.

 

For those who want to keep their Wills’ terms private until following death, the Court’s repository is a suitable choice. It is important to inform a trusted individual your original Will is in the Court’s repository.

 

Lastly, it is worth noting that the dramatic ‘reading of the Will’ events in an attorney’s office as portrayed in books and movies are fictional. In reality, heirs obtain a copy of the Will through the probate attorney’s office or from the Court.

 

 

 

For more information, or to schedule an appointment, please call 425-251-8880 or email info@bethmcdaniel.com

 

First Published: September 2023