Estate Planning with Wills

You can’t take it with you.  By making a will you determine what happens to your “stuff” after you depart this life.  Your testamentary declaration—the Will—is the instrument that determines what is to be done after your death.  It is revocable and amendable during your lifetime; as long as you have the requisite mental capacity to make a will you have the power to revoke or modify it.  The will can be modified by a new will or it can be modified by the proper execution of a codicil.  The will is only operative at your death. 

If you should die without a will, you die “intestate.”  In that circumstance, the law establishes by intestate succession a “default will” pursuant to which your assets are distributed in designated shares among your surviving spouse and children, if any; or, if you are not survived by a spouse or children, then to surviving parents, siblings, etc.  Contrary to what some people believe, your property does not go to the state if you die without a will.  

Requisites of a valid Will.  To be valid, a will must be in writing, signed by the testator (or by some other person for him, in his presence and by his express direction), and attested and signed by two or more credible witnesses in the presence of the testator.  These formalities must be complied with, or the instrument will be invalid and the property will descend as intestate property.  Therefore, it is critical that you engage competent estate planning counsel to assist you in formalizing your testamentary objectives. 

Holographic Will.  A holographic will is one entirely in the handwriting of the testator.  Under Maryland law, a will entirely in the handwriting of the testator who is serving in the armed services of the United States is a valid holographic will if singed by the testator outside of a state of the United States, the District of Columbia, or a territory of the United States even if there are no attesting witnesses.  However, the holographic will be void on and after one year from the date of discharge from the armed services unless the testator dies prior to the expiration of the year or does not then possess testamentary capacity.

Wills executed outside of Maryland.  If a will is executed outside the State of Maryland, it will be given full faith and credit if it is in writing, signed by the testator, and executed in conformity with Maryland law or the law of the testator’s domicile or the place where the will is executed.

Revocation of a Will.  A will can only be revoked by (1) the execution of a subsequent, valid will which revokes a prior will expressly or by necessary implication or (2) by destruction by the testator or by someone in his presence by his express direction and consent.

A will can also be revoked by virtue of marital status.  The subsequent marriage of the testator followed by the birth, adoption, or legitimation of a child by him, provided the child survives the testator, automatically revokes wills executed prior to the marriage.   And, the absolute divorce or annulment of the marriage subsequent to the execution of the will revokes all provisions in the will relating to the ex-spouse unless otherwise provided in the will or decree.

Funeral arrangements or cremation.  A will commonly states whether an individual wants to be buried or cremated, and where the body should be buried or the ashes should be spread. Sometimes, wills contain other information about funeral wishes too like where it should take place and even what readings might be recited.

Nature of bequests.   A will can specifically itemize certain assets you intend to leave one or more beneficiaries.  When the testator intends that a beneficiary shall have a particular thing after his death, the gift is specific.   After specific bequests, the testator can designate that the rest and residue of his estate go to specific persons or charities—the residuary beneficiaries.

Provisions for Minor Children.  If you have minor children, it is critical that provision be made should you die during their minority. There is always the possibility that both you and your spouse will die simultaneously, or within a short duration of time.  A contingency plan should include the designation of a trustee to manage your assets for the benefit of the children until they become adults and the appointment of a guardian to raise your children in your absence.  The person, or trustee, in charge of the finances need not be the same person as the guardian. In fact, in many situations, you may want to purposely designate different persons to maintain a system of checks and balances.

You should give careful thought to your choice of guardian, ensuring that he or she shares the values you want instilled in your children. You will also want to give consideration to the age and financial condition of a potential guardian. Some guardians may lack child-rearing skills you feel are necessary.  If you fail to plan, the decision as to who will manage your finances and raise your children will be left to a court of law.

Trusts.  In many cases, a person may not want a child or loved one to receive all of the property that they are inheriting at once. Or a person may want the beneficiary to be able to use the property for a while, and then for it to pass on to someone else. In that situation, an individual may choose to use a trust.  A trust holds property on someone else’s behalf.  Trusts are commonly  are commonly established for minor children, so that someone else can manage the children’s money until they reach a certain age when their parents believe they will be able to manage it. Trusts are also commonly used in second marriage situations – a person may want to allow a spouse to have access to certain property while the spouse is living, but for that property to ultimately pass to the decedent’s children.  Trusts can help accomplish that goal.

Personal Representative.  The will designates the person or persons to be in control of your assets and estate.  It is the Personal Representative’s function to take care of the decedent’s final affairs, satisfy debts and obligations, and to effect distribution of the decedent’s property in accordance with the testamentary wishes expressed in a Last Will and Testament or by law. 

A Last Will and Testament is a powerful estate planning tool.  However, they are only effective if they are properly drafted to suit the needs of each individual.  The attorneys at the Law Offices of Robins & Robins, P.A., have decades of estate planning experience and can assist you in formalizing your testamentary objectives in a manner that ensures your wishes will be honored.

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Robins & Robins, P.A. based in Salisbury, MD serves the Delmarva Peninsula and Maryland ‘s Eastern Shore including Wicomico, Somerset, Worcester, Dorchester and Talbot Counties.

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