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A will is a legal document that outlines how a person’s assets will be distributed after their death. Factors to consider when preparing a will include understanding the testator’s estate, specific laws relating to wills, appointing an executor, and appointing a guardian for minor children. Accurate financial information is essential to avoid confusion and litigation, and understanding probate laws is important. The executor and guardian appointments should be carefully considered as they will have control over the assets and children.
A last will, or testament, for short, is a legal document that sets out how the testator – the person executing the document – wishes his assets to be distributed upon his death. When preparing a will, there are a number of factors that should be considered. The starting point should be a clear and complete picture of the testator’s estate. Additionally, a testator must understand the specific laws relating to wills in the jurisdiction where the estate will be tested. Who the testator wishes to appoint as executor and who he wishes to appoint as guardian of any minor children are also extremely important considerations when drafting a will.
Before sitting down to prepare a will, a testator should gather all of his or her financial records, as well as obtain the current values on the accounts and real estate held. There are two main reasons why accurate financial information is essential before drafting a will. The first reason is that, if the testator wishes to bequeath specific gifts to the beneficiaries, an accurate description of the gift will avoid confusion and possible litigation upon the testator’s death. The second reason is that, if the testator wishes to bequeath certain dollar amounts to beneficiaries, an accurate value of his estate is needed to determine how much is available for gifting. Be aware, however, that the value of assets can increase or depreciate over time, which can leave a shortfall in available funds or a surplus by the time the will is read when certain amounts are donated.
Just as important as an accurate understanding of the assets in a testator’s estate are the laws of the jurisdiction in which the will will be subject to probate. Probate is the legal process required in many jurisdictions before a deceased’s assets can be transferred to beneficiaries. Of particular importance when drawing up a will are issues relating to the application for probate and the laws on indefeasible succession. In some jurisdictions, probate may be avoided when the estate consists of minimal assets or the majority of the assets are fiduciary assets. Probate laws dictate how assets will be distributed in the absence of a will or in the event that all assets in an estate are not accounted for in the will.
The executor is the person who will be in charge of supervising the estate after the testator’s death. This should be a serious consideration when preparing a will, as the executor will have control of the testator’s assets upon death. The laws relating to the appointment or appointment of a guardian for minor children in a vary by jurisdiction; however, in jurisdictions where the appointment is not legally binding, the court will generally place significant weight on the appointment when making a decision regarding a guardian.
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