Whether you are considering having a lawyer draft your will, or you’ve already done so and are trying to make sense of it, it is important to understand the four main things that a will accomplishes. 

1. Asset Distribution: perhaps the most well-known function of a will, is that the testator (the person making the will), elects to have their assets distributed to a certain person(s). Most people have some assets. Broadly, assets can be divided into two categories: (i) tangible personal property, and (ii) residuary property. Tangible personal property refers to things you can touch and hold, such as your clothing, jewelry, prized fishing poles, artwork, and computer. The residuary property is everything else, such as your bank accounts and real property. If there is no will, this property will follow the statute of intestacy, your state’s default statute designed to distribute the intestate decedent’s (the person who died without a will) property. If you’re unsure as to whether the property would be distributed according to your ideas and goals, it’s a good idea to reach out to an attorney to discuss this with. 

2. Appointing a Personal Representative (Executor): The Personal Representative (“PR”) is the person in charge of distributing your property in accordance with the oversight and procedures of the Office of the Register of Wills. While the PR must conform as closely as possible to the intent of the will, the PR, in most cases, has wide discretion and a lot of responsibility. After all, a will typically does not specify how each asset should be distributed. For example, the PR may have to decide whether to give the actual item to a beneficiary, or to sell the item and give the proceeds to the beneficiary. Again, without a will designation, the PR will be appointed according to a default statutory list of priority (to be clear, the nominated PR is also in the statutory list of priority, but they are the first ones on the list). Therefore, it’s important to decide beforehand who the PR should be.

3. Establishing a Trust for Minor and/or Disabled Beneficiaries:  there are two concerns with minors inheriting assets: (i) how they can benefit from the assets while they are still minors, and (ii) at what age they will have complete ownership and authority over the assets. Regarding the first issue, there are three ways a minor can benefit from inherited assets: (a) establishing a guardianship, (b) the Uniform Transfers to Minors Act (UTMA), and (c) establishing a trust. It is beyond the scope of this article to discuss the first two in detail, however, in most cases, setting up a trust is the most effective way of transferring assets to a minor. For one thing, a trustee (the person in charge of distributing money to the minor), has far fewer restrictions in terms of the withdrawal and accounting process. For another, the testator establishing the trust can select an age(s) for their child to inherit the assets; it doesn’t have to be 18, as is the case for a guardianship, or 21, as can be the case for a UTMA). 

4. Establishing a Guardianship for Your Minor and/or Disabled Child: Do you know who decides who will take charge of a minor if the parents pass away? The court. A court will always act in the best interests of the child. However, the court’s opinion as to a child’s best interests may not be parallel to yours. That is why it’s crucial that parents designate whom they want to serve as guardians for their minor children and/or disabled children. While the decision is ultimately still up to the court, the court will look at a parent’s will, and if there is a guardianship designation, the court will treat that designation as a heavily weighted factor.