Legal Information

The Making of a Will

A Will is a legal declaration of how a person wishes their possessions to be disposed of after death. A Will should be drafted by an attorney. No person should draft their own Will no matter how small their assets.

By a Will a person directs how their property shall be distributed among relatives, friends, and charities. Every person has absolute discretion how and to whom their property shall be distributed after death.

There is however one exception. A person who dies leaving a surviving spouse must leave to such spouse at least one-half of their net estate if there are no children or at least one-third if there are one or more children. If the decedent's estate is substantial, the surviving spouse's share may be placed in a trust.

In the Will, the decedent may distribute the estate either in dollar amounts or in percentage shares or by using both methods. For example, $5,000 to each grandchild and of the remaining amount, "one-half to my wife and one half in equal shares among my children."

In their Will, the decedent will name an executor to collect, administer and distribute the estate. The executor may be a relative, friend, or if the estate is substantial, a bank or trust company. The executor will select an attorney to "probate" the Will.

To probate a Will, the attorney, in the name of the executor, will petition the court for letters testamentary. After the executor receives such letters, all banks, brokers and companies in which the decedent owned stocks will transfer the assets into the name of the executor.

In turn, the executor, after paying funeral expenses, debts and taxes (if any), will distribute to the persons named by the decedent their shares in the amounts provided in the Will.

Many people believe that if you die without making a Will your assets and personal belongings will automatically go to your wife, partner or children. However, this is only partially true. They may actually get less than you hoped because of the laws governing estates. Making a Will, therefore, is an essential step if you want to make sure that your estate is distributed in the way you actually want after your death, and by the executor of your choice.

Some people try to save money by writing their Will themselves. Unfortunately, a badly written Will can cause more problems than having no Will at all!