The stark reality is, upon your death, all your possessions need to be distributed. Your last will and testament provides your instructions about where your things are supposed to go. Your will is like a letter to the court, and not to your heirs, because every will must be presented to the court before it is valid. The process of administering your will is known as probate.
The person designated in your will to administer your affairs and make sure all your things get to where and whom you directed is known as your executor or executrix. The probate court oversees the process to ensure the executor does everything you requested. On average, the probate process takes about 7 to 9 months and depending on complexity of your affairs costs between 3% to 8% of your total assets. In addition, probate is a public proceeding, and as such, the details of your will become part of the public record.
To cut costs and time delays associated with probate, every state has a simplified probate process for individuals without real property and whose wealth is less than a specified amount, but on average it is approximately $50,000. Using a simplified probate process makes using a will a viable option for individuals who do not own real property and have limited wealth.
(Note: Not all assets are subject to probate. Assets with named beneficiaries, such as life insurance, IRAs, 401Ks, jointly-held assets with rights of survivorship and financial accounts with POD (pay on death) designations all pass outside of the will directly to the named beneficiary and are not considered part of the probate process.)
If your circumstances are such that a will-based plan, combined with properly named beneficiary designations, will not trigger unnecessary costs, our planning process will recommend that your estate plan be built around the use of a simple will. Wills are individual documents, so if you're married, your plan will contain one will for each spouse.
In order for your will to be valid, it must be signed and dated in front of at least two witnesses. Witnesses must be at least 18 years of age and not named as beneficiaries or be potential heirs.
Finally, and of extreme importance, in addition to outlining how your assets are to be distributed, guardians for minor children are named in the will.