What is a Will?

Post by: Lesley Hempfling

A Will is a legal document that allows you to prepare for the disposition of your property at your death. There are many considerations to take into account when preparing your Will. In preparing your Will you will need to determine what assets you have, who your beneficiaries are, appoint Guardians of your minor children and nominate Trustees and Executors.

First, it is important to understand that only "probate" assets pass through your Will. A "probate" asset is any asset that does not pass through a beneficiary designation (e.g. life insurance or retirement accounts) or by contract (e.g. bank account established as a joint account with right of survivorship). Because it is not always clear whether an asset is a "probate" asset or "non-probate" asset, it is wise to have an estate planning attorney help you determine which assets will pass through your Will and which will not. In some instances, even the assets that pass via a beneficiary designation or by contract may end up passing through your probate estate (e.g. you failed to provide a beneficiary designation).

Once you understand which assets you are dealing with, it's then time to determine who will be the recipients of your assets at your death - who are your beneficiaries? If any of your beneficiaries are minors, are incapacitated, have a disability or are receiving certain need-based governmental assistance, then special trusts will need to be included in your Will. Trusts that are included in your Will are called "testamentary trusts." These trusts only come into existence at your death. Failing to include these important trusts could create significant expense and delay for the administration of your estate when you pass.

If you have minor children, you will also want to appoint Guardians of those minor children in your Will. This can also be accomplished in a standalone document as well. You will appoint either one single person or a married couple to serve as Guardians. It is advisable to also name one to two alternate Guardians in the event that the first are unable or unwilling to serve.

Finally, you will need to nominate an Executor and a Trustee. The Executor is the person who will be responsible for administering your estate at your death. Your Executor will be the person to "probate" your Will; a process that includes gathering your assets, paying your debts and distributing the remainder of the estate to your beneficiaries. The Executor owes a fiduciary duty to your beneficiaries. That means, that your Executor has a special relationship with your beneficiaries and must act in their best interests at all times. If you have created any trusts in your Will, then you will also need to nominate a Trustee to administer those trusts. The Trustee owes a fiduciary duty to the beneficiaries of the trusts that he or she is administering. As with Guardians, it is best practice to nominate one to two alternate Executors and Trustees in the event that your first choice is unable or unwilling to serve.

Austin attorney Lesley Hempfling can help draft your Will. By hiring a local lawyer in Austin, you can be confident you've taken all the proper legal steps for your Will.