What Does a Will Do?

A Will is a legal document that is effective only at your death. It names individuals that will receive your property, nominates executors, trustees, and guardians to provide for your estate upon your death, and can provide for tax planning and trusts. Generally, probate of the Will occurs in the county where you reside at your death. Failure to follow proper legal procedure in drafting and executing a Will voids the document.

Can I pass my entire estate to others by a Will?

A Will can pass only assets and property in your name at your death. Retirement plans, life insurance, jointly owned property (joint tenancy and joint property with right of survivorship), and POD accounts are some examples of assets that pass outside of the probate process.

What Is Probate?

Probate is the formal legal process that proves that the Will is properly drafted and executed. It is a court-supervised process that transfers your assets to the beneficiaries named in your Will at your death. The court also validates claims made by creditors against your assets. Having the Executor file a formal petition with the probate court begins the process. After notice is published, your will is admitted to probate and Letters Testamentary are issued.

If you die without a will (intestate), your estate is still subject to probate court administration. The court appoints an Administrator to manage the distribution of your estate.

What should I consider before writing my Will?

Among other questions, you should think about the value of your estate assets, whom do you want to receive those assets, who should manage the distribution of them after your death, who should take care of any of your minor children, and how to best protect the future value of those assets.

Can I Do It Myself? Sure, by studying up with the assistance of books and forms and state law, you can draft and execute your own Will. But just remember that Wills are legal documents and need to be precisely drafted and executed to be valid. The Georgia Bar suggests that you seek advice from lawyers who are qualified in the drafting of Wills. We can all save money and time by cutting our own hair, tune up our cars, make our own clothes, but to what result?

Can I Change My Will?

Wills should be reviewed periodically and your assets and desires should be considered annually. This review allows you to make sure your assets are distributed as you wish.

Your Will can be changed through a document called a codicil; this is a legal document drafted and executed with the same formality as a Will—it is simply a legal amendment to your will. Do not mark through words or paragraphs of your Will. Doing so will usually void the validity of the Will. Always seek the advice of a lawyer before making changes to your original Will should you have major changes in your life (marry, have children, divorce, financial, or move).

Who Should I Tell About My Will?

Your Executor and close friends or relatives should know the location of your original Will. One of these people can file the Will with the county Probate court at your death. Therefore they need to know where to find it.

Your original Will should be kept in a safe place such as a bank safe deposit box or home fireproof box. By having an Estate Planning book or folder, the location of this and other important legal documents can be written down for others to locate.

Will My Family Have to Pay Estate Taxes?

Assets that are transferred to your spouse (if he or she is a U.S. citizen) or to charitable organizations are not subject to estate taxes. This year, 2008, assets that pass to other individuals will be taxed if the net value is $2 million or more. Next year that will increase to $3.5 million. Under current law, in 2010 the estate tax will disappear completely. However, in 2011 the exemption will revert back to $1 million. If your estate approaches or is over these values, proper planning can save significant amounts of estate taxes.

That planning should also take into consideration income, gift, property and generation-skipping taxes as well. As mentioned above, qualified legal advice should be obtained before doing your own planning.

What is the cost of a will?

The cost of preparing your Will depends on your personal circumstance and the complexity of the planning required achieving your goals. Costs will also vary from lawyer to lawyer. The costs include the lawyer's charges for discussing your circumstances with you, drafting the documents, having them reviewed and then formally signed.