Why do I need a will?

A will allows you to:

• Specify to whom you want to receive your assets
• Designate guardianship of your children
• Appoint a Trustee of any money left for minors
• Choose an appropriate age at which your minors can receive money outright

Without a will, the state will decide these matters for you via the laws of intestacy. While the laws of intestacy vary from state to state, in general, when one dies leaving a spouse and children, one’s assets will be divided among them in some manner specified by law. If one dies without a spouse or children, the state will determine who among one’s relatives will inherit a portion or all of the estate.

Often, one needs a will even if a trust exists. That’s because most trusts deal with a specific asset such as life insurance or a piece of property, rather than encompass all assets. A trust allows one to place conditions on how assets are dispersed upon death and at times, depending upon the current tax laws, allows one to reduce gift and estate taxes.

In the case of a revocable living trust, where the majority of one’s assets will be held, one needs a pour-over will. Its purpose is to ensure that all assets intended for the trust get there in case one fails to change the title of an asset prior to death and to designate beneficiaries.

An asset that is not in the name of the trust, and is not in survivorship, is subject to probate.

What if my spouse and I can’t agree on guardianship of our children if we both die in a common disaster?

Choosing a guardian of your children whom you and your spouse both believe is equally competent to raise your children may be the most difficult decision you make when contemplating terms of your will.  It is not uncommon for couples to significantly delay executing their wills—sometimes for years—because they hit an impasse when it comes to this issue. This is a mistake.

Without a will, if both parents are deceased, the probate court will choose a guardian for your children. If the appointment is contested by a family member, it could result in a family battle analogous to what children experience when parents divorce. If you can’t find a way to agree on this issue, I recommend that spouses choose different guardians. While it is not the optimal solution, in most cases it is a better solution than having the probate court decide and is certainly preferable to not executing a will at all. The reality is that the terms of the will of the person who dies second will govern.

Does the guardian of my minor children also have to serve as trustee of any money I leave for my children?

No. There may be two different people who would be great choices for each appointment respectively. For instance, you may have a family member who is closest to your minor children, and who also happens to be nurturing with the same values that you and your spouse share. This person may be a perfect guardian but not be financially savvy or good with money at all. In such a case, you would want to choose another person as Trustee.

What does an executor do?

The executor’s job is to bring the will to probate court and to oversee the estate administration. While it is customary for an executor to be named in the will, as well as an alternate, the probate court will appoint one if the will fails to name an executor or if the person named is unable to be located or is unwilling or unable to assume the position.

Some of the executor’s responsibilities include:

• Locating decedent’s documents (will, trust, life insurance policy, etc.)
• Initiating the probate process by filing the will in probate court
• Determining all of the decedent’s assets and making an inventory for the probate court
• Notifying creditors, debtors and beneficiaries of the decedent’s death
• Notifying the Social Security Administration of the decedent’s death
• Determining whether any debts or income are owed to the decedent and collecting them
• Paying any debts owed by the decedent
• Filing and paying any taxes owed by the decedent and the estate
• Preserving as much of the estate’s assets as possible
• Filing an Accounting with Probate Court
• Distributing remaining assets to the beneficiaries designated in the will
• Attending court hearings

Who should I name as executor of my will?

It is best to have a responsible person serve as executor. Preferably, it should not be someone who is also a named beneficiary in case a conflict of interest arises.

Can I be held accountable as executor if something goes wrong?

Yes.  If any duties are breached, an executor can be held legally responsible for any losses that result from the breach.  This is why it is often a good idea to hire a professional, who can help you understand the duties involved as well as handle any issues that may arise.

Once all debts are paid and the assets are distributed to the named beneficiaries, the estate may be closed.

Can I change my will once I create it?

A validly created will remains effective until it is changed, revoked, destroyed or invalidated by the writing of a new will. Many times codicils are used to make changes or additions. As long as they are duly executed in accordance with the rules of the state in which it is being signed, the codicil will be valid.  However, beware of the risk that a codicil can become separated from the will. Since it is vital that both documents be read together, it is imperative that they be secured in a safe, fireproof place.

Wills cannot be changed by crossing out existing language or adding new provisions without the formalities of will execution.

What are Connecticut’s rules on executing a will?

In Connecticut, in order for a will to be executed properly, it must be in writing and signed in the presence of two witnesses and a Notary or a Commissioner of the Superior Court.  The Notary or Commissioner of the Superior Court may also serve as one of the witnesses. However, a named beneficiary may not serve as a witness, Notary or Commissioner of the Superior Court.

Holographic wills, or oral wills, are not recognized in the State of Connecticut.

When should I consider changing my will?

In order to keep up with life changes such as births, deaths, marriages, divorces and changes in assets, wills should be reviewed at least every few years. At the same time, be sure to review your beneficiary designations for any deferred compensation such as 401(k) plans, IRAs, pensions and life insurance policies, as these accounts transfer automatically to the named beneficiaries of those funds upon your death.

Will I ever be barred from changing my will or terminating my will?

In order for a testator (one who executes a will)  to execute a will or revoke a will, he must be mentally competent. A will can be revoked if the testator intentionally destroys it, burns it, or tears it. If one is legally incompetent, then he may not change or terminate his/her will.

Why do I need a trustee for a will, when I’m not creating a trust?

When a testator wants to leave assets to a minor child, he should appoint a trustee to manage the assets and to follow instructions as to how they may be used. Since the law requires that children’s inheritances be managed by an adult until they attain the age of eighteen, a court will appoint a trustee if one is not designated in a will.

A trustee may be monitoring investments for many years in order to maximize the assets. Therefore, the role of trustee is very important. Often family members or close friends are selected to serve as trustee. Some people prefer professional trustees, such as a financial institution, for their expertise.

It is common for the testator to choose an age at which he wants assets of the trust to be distributed outright to the beneficiaries. If an age is not specified, the Uniform Transfers to Minors Act (UTMA) will govern.