Everyone should have a will. It’s a keystone of any estate plan, and it’s a critical way to ensure that your assets pass to your loved ones – and not the state – after you pass. It’s easy to be intimidated by some of the technical aspects of estate planning, particularly given how specialized the concepts and vocabulary related to the execution of an estate can be. A skilled estate planning attorney is an important partner in the process of setting up your will. But just to give you a better idea of who and what is involved in the execution of your estate, or if you’ve been named as the executor of a will yourself, here is some helpful information that may help you grow more comfortable with the process.
The Execution of a Will
A will is a legal document providing for the distribution of the property that an individual owned at his or her time of death. American property law generally protects peoples’ rights to distribute their property as they choose, so wills carry important legal significance. However, if a will is drafted or executed improperly, your assets may be subject to forced heirship laws. In Illinois, this law is known as The Probate Act of 1975 (755 ILCS 5/2). The Probate Act in Illinois dictates who is entitled to your property, and should be avoided at all costs. After all, you should be able to decide where your valuable property goes after you die, not an anonymous judge sitting behind a bench in probate court.
In addition to the dispensation of your assets, a will can legally designate guardianship for your minor children. You can also designate beneficiaries that the Probate Act would not otherwise recognize, such as beloved friends or distant relatives. Having these plans clarified in advance will help minimize legal challenges that often arise during already challenging circumstances.
A skilled estate planning lawyer can draft a will to various degrees of complexity in order to meet his or her clients’ needs. Wills have meaningful impacts on your family’s assets and tax obligations after you pass, so it’s very important that they are drafted properly. Even if you already have a will, best practices dictate that updates should be made at least every three years, or whenever you buy or sell valuable property.
The legal requirements for executing a will vary by jurisdiction, but the exact process must be followed in order for the will to be valid. At the very least, this requires the formal signing of a written document before witnesses. In Illinois, for example, there is a requirement that the will be witnessed by two witnesses who are not beneficiaries. However, once a will is finalized, it typically names the beneficiaries of the estate – the individuals entitled to receive the assets – as well as the estate’s executor.
The Executor’s Role
The role of the executor is to carry out the wishes a person has expressed in his or her will. These duties are triggered upon the death of the estate owner, and they are not to be taken lightly. In fact, people often name their estate planning lawyers the executors of their wills simply out of convenience. After all, it can be difficult to manage the potential minefield of legal and financial pitfalls of executing a will without professional training.
An executor’s roles vary by jurisdiction, and exactly what is required of executors in your jurisdiction is a question that can only be answered by a licensed attorney. Generally, however, an executor must present a will for probate, takes necessary legal actions to protect the assets held in the estate, pays the decedent’s debts and taxes, and then distributes the property to beneficiaries named in the will. If a person dies without a will or does not name an executor in his or her will, the estate will move through probate according to local laws with an executor appointed by the courts.
Regardless of the potential complexity of carrying out the requirements of a will, anyone can be named an executor. However, executors can be held personally liable for mistakes they made managing an estate. Thus, even an unintentional error in managing the probate process, payment of debts and taxes, or distribution of assets can raise serious legal liability. Often, an executor who made gross or intentional missteps while carrying out the requirements of a will is required to make up for the error our of his or her own pocket.
Serving as the executor of a will is a serious undertaking, and it’s something that many people find themselves unprepared for. It requires learning a great deal of technical vocabulary and a great many legal concepts, often in a short period of time following a major loss. If you are named as the executor of a decedent’s estate, your first step should be to secure the assistance of a good estate planning attorney. This is particularly true if the will involves valuable assets or complicated legal or financial matters.
A Lawyer’s Role in the Execution of a Will
The executor’s role in the carrying out of a will can be expansive. More often than not, people name attorneys, banks, trust companies, or other professional organizations as executors in their wills. By doing so, they are seeking to avoid dragging loved ones through the costly, time-consuming, and burdensome process of executing an estate. Nevertheless, many people want to see their final wishes carried out by a trusted friend or family member. Naming these individuals as executors of your will can be a great honor, but with this duty comes great responsibility.
There are a myriad of laws regulating wills, trusts, and estates, and these laws are highly specific to the requirements of individual jurisdictions. An estate planning lawyer’s role is ensuring that your final planning documents comply with local rules so that the execution of your will can be carried out smoothly. After all, you spent most of your life working towards your personal and financial goals. There’s no reason to abandon them at the time of your death, and having a will that names a trusted executor is key to ensuring that your family, friends, and property are protected after you’re gone.
Everyone needs a will, and it’s tempting to work up an estate plan yourself based on internet how-to guides. However, the potential pitfalls to do-it-yourself estate planning are serious. By not consulting a good estate planning attorney before drafting your estate plan, you may end up raising serious legal issues for your loved ones down the road. This is particularly true of individuals who do not get legal advice when planning for the execution of their wills. Avoid the tragic pitfalls of poor estate planning and contact our firm today for a complementary consultation.