What Is It?
One of the nicest gifts you can leave your heirs when you die is an estate that's in good order, planned according to your wishes, with a guardian designated to represent any minor children, and with provisions to cover estate taxes . You can accomplish all this by leaving a will, yet close to 60 percent of Americans die without one (Source: FindLaw.com).
If you die without a will, that is if you die intestate, you leave it to the courts to resolve your estate, which may or may not pass according to your wishes. The court will appoint an administrator for your estate and a guardian for your minor children. These may be people who don't have your best interests at heart and whom you would not have chosen to represent you. You lose the opportunity to minimize estate taxes and to avoid the potentially costly intestacy process, both of which can greatly diminish the value of your estate. You owe it to yourself and your loved ones to ensure that your estate is distributed as you wish. Don't leave it to the state and the courts to make these critical decisions for you. You can ensure that your estate is planned according to your wishes by drawing up a will, selecting an executor, and nominating a guardian for your minor children. If you care about your loved ones, don't die intestate.
A will is a legal document that allows you to determine how your estate is distributed after your death. In addition to saying who gets what, it allows you to name an executor for your estate and to designate a guardian for your minor children. A will also provide an opportunity to minimize estate taxes and probate costs. One of the most important advantages of a will is that it allows you to avoid intestacy. If you die without a will, the intestacy laws of your state of domicile determine how your estate is distributed. Intestacy can be a costly process for your estate. Without a will, the courts will also select an administrator for your estate and appoint a guardian for your minor children. These may not be the people you would have chosen to represent you. You can control the distribution of your estate and avoid these other potential difficulties by drawing up a will.
Selecting an Executor
An executor represents you after your death in settling your estate. You want your executor to be someone you trust who has the necessary knowledge and experience to oversee your affairs. You can designate an executor in your will. If you don't, the court appoints one for you. He or she is called an administrator. With a court-appointed administrator, you have no say in who manages your final affairs. Also, an executor or administrator is entitled to a fee from your estate for the services he or she provides. Close family members often waive the fee. A court-appointed administrator, however, can take a sizable cut, greatly diminishing the value of your estate.
Nominating a Guardian/Conservator for Minor Children
If your children are still minors when you die, and your spouse does not survive you, you'll need someone to raise your children. If you haven't nominated a guardian in your will, the court will appoint someone. If your spouse dies before you or if you and your spouse die together, the court may appoint an aging grandparent who lacks the health or financial resources to care for the children until they come of age. Or, the court may appoint a sibling with whose lifestyle you disagree. If no one else comes forward, the court may name a relative who volunteers, regardless of that person's suitability.
Guardians should be your trusted representatives. You can nominate guardians in advance through your will and other legal directives.
If you die without a valid will, the intestacy laws of your state of domicile govern how your estate is distributed. In an effort to provide for the uniform succession of property not covered by a will, your state legislature has essentially created a one-size-fits-all will through its intestacy laws. If you die intestate, your state legislature and not you determines who gets what.
Intestacy laws vary by state, but there is a general pattern to them. They determine who your heirs are regardless of whether you had good or bad relationships with them--the order of succession, the percentage of your estate each receives, and in what form they receive it. There's no flexibility to provide for a devoted friend, an unrelated caretaker, or a favorite charity, or to provide a greater share for a less well-off child or relative. Intestacy can also be a more costly process than probating a will, and it doesn't allow you the opportunity to minimize estate taxes.
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