5 Reasons to Draw a Will

5 Reasons to Draw a Will

There are many reasons why it may be important to seek the help of a Peoria IL probate lawyer to draw a Will. One reason is that a Will is a final expression of a person’s love or admiration for people he or she has chosen to name in his or her Will.  A second reason occurs when people marry for a second or more time and there is a desire to include step-children in a surviving spouse’s Will.  A third reason is that preparing a Will can assist in the avoidance of federal and state death taxes.  A fourth reason is that with a Will, the need for a surety bond can be waived.  And, a fifth and final reason is that with a Will, a testator – the person who makes the Will – can give specific property to certain people, rather than having his property simply sold or distributed, at random.

A final Will can be an expression of love for family or friends by the testator.  Normally, the Will maker will name those people who have been closest to them throughout their lives as the beneficiaries of their estate.  A beneficiary is a person who is named in the Will to receive property from the testator’s estate.  Conversely, it is not uncommon for a Will maker to exclude people from his or her Will.  As families grow older, they  sometimes grow apart.  Children grow up, marry and may move away from parents or other relatives.  For various reasons, the younger generation fails to maintain contact with the older generation.  Because the younger people fail to maintain a close relationship with parents or other related family or friends, the testator will specifically exclude the estranged child or relative from their Will.  If a person fails to draw a Will, people he or she wanted included, may not receive any property, and people the testator did not want to receive a gift may, if a Will is not drawn.

If a testator marries for a second or more time, he or she may or may not want to divide his or her estate among his biological children and his step-children.  Stepchildren are not normally entitled to receive a portion of the estate of a deceased stepparent.  The stepparent must specifically name a stepchild in his or her Will in order for that person to receive a portion of his estate.  Many couples who are on their second or later marriage will specifically provide for an equal distribution of their combined estates to both biological children and stepchildren.  A related issue in this context is that if one spouse dies without drawing a Will, he or she is said to have died intestate.  If one dies intestate, then his or her spouse will only receive one-half of the predeceasing spouse’s estate.  The other half of the estate will be given to any surviving children.  If one intends that his or spouse receives the entire estate, then he or she must draw a Will.

A third reason to draw a Will is to avoid federal and state death taxes.  Currently, the exemption for federal death taxes is $5.45 million dollars.   Most of us do not believe that we will ever accumulate that much wealth, but there are those that do.  In a married couple situation, it is an easy solution to include by-pass trusts in each spouse’s Will.  A by-pass trust passes the predeceasing spouse’s entire estate to the other spouse to be held in trust for the remainder of the lifetime of the second spouse to die.  Upon the second spouse’s death, the money in the trust passes to the parties’ surviving children.  This is a simple estate planning mechanism, but if not taken advantage of by drawing a Will, the surviving spouse will pay a substantial amount of taxes that could have gone to the children of the parties.  Certainly, a very compelling reason to draw a Will.

A fourth reason for drawing a Will is that the testator can waive the requirement that the person who administers his or her estate – either an executor or administrator – obtain a surety bond.  If not waived in the Will, the executor or administrator will be required to be personally responsible for double the value of the estate’s personal property.  In addition, the executor or administrator will be required to find two other people to act as additional sureties on the bond.  These persons, like the executor or administrator will be held personally responsible if the personal representative misappropriates funds that come into his possession.  By drawing a Will the requirement of a surety bond can be waived.

A fifth and final reason for drawing a Will is that if the testator has special personal items in his or her possession, he or she can name a specific person to receive these items.  Such items can be family heirlooms, keepsakes, antiques, or any other object that the testator wants someone to have, or a piece of personal property that the testator knows the recipient would especially cherish.  It could be grandmother’s wedding ring or a quilt, a gun collection, a coin or stamp collection.  It could  be china, or other special tableware that the testator wants to keep in the family for generations to come.  If a Will is not drawn, these type of personal property could be distributed randomly or even sold at an estate sale to people outside of the family.

Drawing a Will is an important part of preparing for our older age.  It can provide peace of mind for the testator, and for family or friends who remain behind.

Thanks to our friends and co-contributors at Smith & Weer, P.C. for their added insight into the importance of drawing a will.

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