The Need To Make A Will


By: Erika Kelley, Esquire, Cooper Levenson, Attorneys at Law

As a probate litigation practitioner, I am constantly reminded of the importance of a having a valid Last Will and Testament (commonly referred to simply as a “Will”) to govern your last wishes. Failing to have a Will gives others substantially more control over decision-making related to your estate.

A “testator” – an individual making the Will – makes several key decisions including selecting a person (or persons) who they would like to have serve as their personal representative (their “executor”). The executor carries out the business of the testator’s estate – gathering assets, paying bills, etc. Additionally, a testator can select a guardian (or co-guardians) for their minor children as well as engage in thoughtful estate tax planning. Perhaps most importantly, a testator specifically sets forth how and to whom they would like to leave or “bequeath” money or personal property in their Will.

It is important to note that some assets are not considered estate assets and those assets pass “outside your estate.” That means that these assets are governed by simple contract law. Life insurance contracts, for instance, are generally considered to be a contract between the insured and the insurance company and a beneficiary is usually designated by the insured. This concept also applies to social security or pension benefits and jointly owned property including real estate, personal property and bank accounts.

In the event that you do not have a Will in place at the time of your death, your estate will pass by way of “intestacy” which is governed by the laws of the state that you reside in at the time of your passing. The distribution of your assets, as set forth in these intestacy laws, may not be how you would prefer that your assets pass – thus the need for you to make a Will. I will address the effects of intestacy at length in the September/October issue of Active Senior Living.