Q
What is the purpose of the Last Will and Testament?
A Will, also known as “Last Will and Testament”, is prepared to remove the ambiguity about how your assets will be distributed after your death, and to ensure that your assets are distributed the way you desire. It is important to communicate your wishes clearly and precisely. On the other hand, a Will is only one part of a comprehensive estate plan.
Q
What are the differences between a Will and a Trust?
The most important difference is that a Trust takes effect as soon as it is created / signed, however, a Will does so only after death. In this sense, Trusts can be used to provide direction to your assets even while you are alive, however, unable to make decisions on your own.
Trusts are of private nature, while Wills are public records.
In order to execute a Will and distribute assets to relevant beneficiaries, probate court is required. However, this requirement can be avoided in case of Trusts.
Q
Do I have to have my will approved by a lawyer or an organization?
No. You can write your will yourself, without the need for the supervision or approval of any attorney or organization.
Q
In which cases should I seek professional support regarding my Will?
Some people may feel more comfortable with professional support when preparing their Will. As a matter of fact, it may not be easy for an individual to prepare a legally valid and effective text on his own. Different requirements, which vary from State to State in the U.S., can risk the validity of a will. For example, if you are considering depriving some people of your estate, or if you expect any objections to your Will after your death, it is useful to seek professional support.
Q
Can I choose a friend or family member to have my assets distributed according to my Will?
Yes. You can even assign your spouse, children, siblings, relatives or friends. These people are called executors. Your executor collects your receivables, pays your estate expenses, debts and taxes before distributing your estate.
Considering the possibility that your executor will not be able to fulfill this duty, you should also specify a substitute or joint executor. In this case, it would be useful to state in your Will how you would like to resolve any potential disputes between the two of your Executors.
Q
If I die in the U.S. without a Will, how will my estate be distributed?
The probate process is quite complicated when there is no valid Will. If you do not have a Will when you pass away, this situation is called “intestate”. In the context of Intestate, the estate is distributed in accordance with the laws of the State of your residence.
For example, according to the laws of the State of California, it is firstly checked whether the deceased was married or not. If the deceased was married, it is taken into account whether the assets are of community property, separate property, or a combination of these. The community property remains with the spouse after the relevant petition (California Spousal Property Petition) is filed. Separate property is distributed according to the law.
If the deceased is not married, the estate is equally distributed among the living children. However, if a child died before the deceased, the children of that child (grandchildren) will split the parent’s share.
If there is no spouse or child, distribution is made based on next of kin, i.e. mother, father, siblings, grandparents, aunts/uncles, cousins, etc. If no living relative can be found in this order, your estate will be owned by the State of California.
