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Wills / Basic Estate Planning

A Will is simply a written document that specifies how the person making it wants his or her property to be distributed after death. Wills can also include nominations for who the person would want to serve as the guardian of his or her minor children or disabled/incapacitated dependents.

Wills can obviously be an effective estate planning tool, and for many people they can serve as the primary instrument to carry out their estate plan. However, it is also important to recognize the following:

• There are very strict and specific legal requirements which must be met in order for a Will to be valid and effective. If these requirements are not met, the document which is intended to be a Will may not be accepted or given effect. Often, this can present a worse situation than if no Will were ever prepared.

• A Will can only dispose of what is commonly referred to as "probate property," which refers to assets which would be subject to administration within the probate process. In general, this would include any property which will not automatically pass upon your death to a beneficiary or co-owner, whether by contract, by operation of law or otherwise. It would also include assets which might pass automatically by such "pre-defined" means, but you have designated that you want such assets paid to your estate. In contrast, “non-probate property” would pass automatically by operation of law upon your death, and might include retirement accounts with an effective and appropriate beneficiary designation (not your estate), real estate which is titled jointly with a right of survivorship, or bank accounts with a “payable on death” or “transfer on death” designation. A Will can only be effective in guiding the disposition of probate property. Even the most carefully crafted Will can accomplish nothing regarding the transfer of non-probate property.

• The provisions of a Will need to be drafted in coordination with a person's other estate planning. Provisions which conflict with other planning can create confusion and problems.

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