Why You Need A Will

This is Dial-Law on information about why you need a will. A will is an important and useful legal expression of your wishes at your death. With a will, you decide who will receive your money, possessions and property. Without a will, your money, possessions and property will be divided according to the state laws-but that division could be contrary to what you would have wanted.

If you die "intestate"--that is, without a will--the law requires that your property be divided in certain proportions among certain of your relatives. You should have a properly drawn will if you want some relatives to get more, others to get less, or if you want to exclude someone altogether. A will is also necessary if any of your money or property is to go to a charity, or to someone who is not included in the group of relatives who would take under the intestate laws. A will can also provide that distribution of assets can be delayed until a later time, such as when a minor child reaches a certain age. This is done by including trust provisions in the will.

You the maker of the will, must be at least 18 years old and of sound mind at the time you sign your will. Your will should be in writing and then signed by you in the presence of two witnesses, who must also sign the will. If you wish to make a new will or to change your existing will with a "codicil", you must again do so in writing, signed by you in the presence of two witnesses. You cannot change the terms of your will by writing something in or crossing something out after the will is signed and witnessed. Writing on the will which has not been dated and witnessed is not given any effect by a court, and, if the will is altered after its execution, part or all of the will may become invalid.

A will allows you to name your executor, the person who will see that your estate is handled according to your wishes. It is best to choose an executor for yourself. If you do not, the court will appoint an administrator after you die. In addition, because the administrator will be handling your property, he or she will have to post a bond usually guaranteed by an insurance company. The expense of the bond premium(which can be thousands of dollars) can be saved by nominating an executor and waiving the bond guarantee in a will.

You may also use the will to name a guardian to care for your minor children in the event of the death of both you and your spouse. In Illinois, children are considered minors until age 18. A guardian is customarily responsible for seeing to minor children's well being and managing their property. You can name different people to care the child, known as guardian of the person, and to manage the child's property, known as guardian of the estate. While you can name guardians and an executor in your will, those named can refuse to act. You should therefore, ask the people you intend to nominate if they are willing to serve before drawing up your will, and you should nominate substitutes to act if something happens to your first choice.

Your will may also direct that a trust be created at the time of your death. This is called a testamentary trust. A trust offers two important benefits. First, a trust may reduce estate taxes and costs. Second, a trust may provide financial assistance and management for a beneficiary.

The trust may also keep all or part of your estate intact so that the income and income-producing assets can be used to provide your children or other persons whom you wish to benefit over a certain period of time. A trust can make a guardianship of the estate unnecessary for a child or other disabled person. Moreover, such a trust is often more flexible than a guardianship and can continue beyond the child's 18th birthday.

A will does not, however, determine who will receive jointly held assets or the proceeds of life insurance, profit-sharing, and pension plans where there is a designated beneficiary. The proceeds of a life insurance policy which names your child as beneficiary will go to the child and no one else. Similarly, an insurance or IRA contract cannot be changed by instruction in your will, but must go to the designated beneficiary or in accordance with the contract.

Even if you and your spouse hold all of your property as joint tenants, you need a will. This is because in the event of a disaster which kills both of you, or after the death of the survivor of you, the property will be distributed according to the laws of the state in the absence of a will.

Although you might think you only have a modest estate, the growth of employee benefit plans, the use of insurance, the growth in the value of real estate, and inflation have made it possible for many people to accumulate assets of considerable monetary value.

These developments, as well as changes in the tax laws, make estate planning a good idea for all persons except those in the most modest circumstances. A properly drawn will can reduce both federal and state taxes and the costs of administering your estate, and ensure that your property goes where you want it to go.