My Will, My Way

A person’s last will and testament is called his “Will” because the document is supposed to reflect the will (or intention) of the person signing the document.  A person making a Will is called the “testator.”  Another way of saying this is, the document called a Will reflects the intention of the person making the document with respect to how his property will pass after his death and who will handle his affairs, typically called the executor.

Wills are to be read in a manner that effectuates the intention of the testator as expressed in the Will document, as closely as possible.  It is said that a Will is to be interpreted in a manner that effectuates the probable intent of the testator.  We do not read Wills as a typical legal document looking for mistakes that might make the Will fail; instead, we read a Will in a manner that effectuates the intentions expressed in the Will as best as those intentions can be accomplished.

Through a Will, a person can effectuate any purpose he wants with his assets subject to a few, very limited exceptions.  A Will cannot be used to accomplish a desire that is contrary to public policy.  For instance, a testator could not say, “I give my entire estate to my daughter on the condition that she divorces her Irish husband.  I don’t like people who are Irish, so my daughter must divorce her Irish husband in order to receive my estate.  If she doesn’t divorce her husband, then my estate shall pass to the dogs.”  Such a devise (which is the name given to an inheritance under our laws) is against public policy.

If a person’s Will contained a devise such as this, the offending language would be stricken from the Will.  In this case, the daughter would receive the inheritance without the requirement that she divorce her Irish husband.

In a Will, a person can leave his property to whomever he wants, with one exception.  If the testator is married, his spouse may be able to receive one-third of his estate even if he disinherits his spouse.  In other words, if Mr. Smith disinherits his spouse and leaves his entire estate to his children, Mrs. Smith might be able to claim one-third of Mr. Smith’s estate.  This is called an “elective share.”  Whether Mrs. Smith can obtain any of Mr. Smith’s estate depends on the amount of money Mrs. Smith has in her name.  The more assets she has in her name, the less she will receive from Mr. Smith’s estate.

Other than a spouse’s right to claim against a deceased spouse’s estate and public policy concerns, the testator is free to leave his estate any way he chooses.  If a person has four children, he is free to leave his entire estate to three of them and disinherit one of them.  He doesn’t have to leave the disinherited child $1 or $5 or any other arbitrary sum.  Mr. Smith is free to simply disinherit the child.

A Will is a document that is designed to reflect your intentions.  Through it, you can leave your property how you want, to whom you want.  It’s your money, so as long as you don’t offend common decency, you can do with your property what you want.

Is a Will Important?

A last will and testament can be a very powerful legal document.  It has the potential of disposing of all of your property after your death.  A Will could control tens of thousands dollars or even millions of dollars of assets, depending upon the worth of the deceased person.  On the other hand, a Will might control nothing.  It depends on what assets the decedent owned and how those assets were titled.

A Will is only an effective document after the person who made the Will dies.  During his life, his Will has no effect at all.  A person can always change his Will until the day he dies.  This is why we call it the “last will and testament.”  The only important Will is the last will that the person made before he died.  All prior Wills are meaningless.

If a person dies without any assets, then his Will won’t control any assets.  Sometimes, a client of mine will be a recipient of Medicaid benefits and his family will say something such as “Dad doesn’t have a Will.  Does he need one?”  If dad is receiving Medicaid benefits, then he would have to own less than $2,000 in assets.  So, he might need a Will, but his Will isn’t going to control many assets.

There are non-financial aspects of a decedent’s affairs that can be controlled through his Will.  For years, I have nominated a funeral agent in my clients’ Wills.  This is a person with authority to direct the funeral arrangements for the deceased person.  This could be very important if there is a dispute as to how the deceased would like his remains handled.  Funeral directors like it if there is a nominated funeral agent, so I have nominated a funeral agent in my clients’ Wills to handle this situation.

A Will may or may not control the decedent’s assets.  It depends on how the decedent titled his assets.  When a person dies, his assets pass in one of three ways—by operation of law, by contract, and by probate.  If all of person’s assets pass by operation of law or by contract after his death, then his Will won’t control how any of his assets pass.

An example of property passing by law is when a husband and wife own their home jointly.  When a husband and wife own a home jointly, they own it as joint tenants with right of survivorship.  This means that when one spouse dies, the other spouse becomes the absolute owner of the entire property.  Nothing needs to be done to effectuate the vesting of absolute ownership in the surviving spouse.  The property passes to the surviving spouse by operation of law.

An example of property passing by contract is a life insurance policy that names a beneficiary.  When the insured dies, the insurance policy pays out to the named beneficiary.  The contract, the life insurance policy, controls who will receive the proceeds of the insurance when the insured dies.

A person might die with nothing but property that passes by operation of law or by contract.  Typically, when the first spouse dies, his Will doesn’t have to be probated because everything passes to the surviving spouse in one of these two ways.

On the other hand, a Will might control some of the decedent’s property or all of the decedent’s property.  For this reason, a Will can be very important.  In fact, in my opinion, it is wise to ensure that some of your property passes under your Will because you need to leave your executor with some assets with which to pay your final debts—funeral expenses, medical expenses, credit card bills, and utilities for your house.  Without any assets, your executor can be left in the unseemly positon of having to beg or to sue the individual who received your assets by operation of law or by contract in order to pay your debts.