WILLS

1. The Function of a Will

• Purpose: To provide for the distribution of assets which are held in the decedent's name alone, or which he or she owns with other people.
  

• A Will cannot be used to pass property held jointly with another person.
  

• A Will permits the distribution of assets to beneficiaries as the testator (the person who makes the Will) intends, and not as the law defaults.

• It is a common myth that assets go to the state if a person dies without a Will. The courts will search diligently for relatives of the decedent before any assets are given to the state.

• NOTE: A Will does not take effect until the death of the testator. Having a Will does not offer protection in case the testator becomes incapacitated. Other documents have to be created to protect against the possibility of the testator's inability to carry on business as usual. (See sections on Health Care Proxy and Power of Attorney)

2. Probate of the decedent's estate

• The Surrogate's Court must determine whether a Will is valid. If it is found not to be valid in whole or in part, then all or a portion passes according to default laws.

• A Will can contain tax planning provisions and techniques. For example, it can include testamentary trusts: that is, trusts that are created in the Will and are typically funded only after the person dies.