A will is a document that expresses where you would like your property to go at your death. These documents require strict formalities to be valid. If a formality is not followed, the will can be void. The manner in which it is signed must adhere to a very strict procedure; in Colorado, a Will, to be valid, must be either wholly in your own handwriting, signed and dated by you, or if not in your own handwriting then it must be signed by you and two witnesses. This is not the place for do-it-yourself documents.
A will is not effective unless probated at death, and most importantly, your will only works on property that stands in your name alone. Therefore, a will does not cover all of your property, which is a big limitation. Additionally, it can name guardians and conservators for minors and/or can establish a trust to protect minors or disabled children just for the assets covered by the will. Wills can be amended or revoked before death as long as you are mentally competent.
- An estate plan using a will can be fairly easily and inexpensively put together by your lawyer.
- It is an estate plan that can dispose of all of the types of assets covered by a will. However, other assets, such as titled real estate, only pass under a will if the title is in the sole name of the deceased. If you change your mind you just have to change your will. Titles to assets do not have to be changed.
- You can leave all of your property that is subject to a will in your name alone without inviting interference from children.
- A will can be changed as often as you wish without the hassle of retitling your assets at the bank.
- Charitable gifts can be included and changed from time to time in a fairly easy fashion.
- Very simple and understandable distribution language can be used: “I leave all of my property to my children in equal shares.” (This is just the property actually covered by the will.)
- You can name guardians, conservators and trustees to manage matters for your minor children after you are gone.
- You can appoint who you wish to be the “personal representative” and manage your estate after your death. This can be a responsible child or an unrelated professional.
- Estate administration can be fairly simple. Your chosen personal representative inventories the property, pays your final bills and then distributes the remainder to your beneficiaries-after the court has given him or her permission to do so.
- An estate plan with a will is a relatively inexpensive plan at the time that you do the planning.
- At the time of your death, a will must go through the probate process to be valid. This involves using a lawyer and the court system and thus can be somewhat costly, time consuming and mentally frustrating for the personal representative.
- The minimum time for completing the probate process is about six months. While distributions can be made within this time, the probate estate cannot be finally settled until the proper statutory time has elapsed.
- While your will plan is very confidential during your lifetime, many matters concerning your estate are public at your death. When your will is filed for probate it is available for the public to read. The process also requires that your personal representative file an inventory of your assets with the court, and this also is public information. Loss of privacy occurs.
- Wills only apply to assets owned by you alone that don’t pass by “operation of law,” such asjoint tenancy assets. Wills also don’t include life insurance and other property or assets for which you have made a signed beneficiary designation.
- While an estate plan with a will may be relatively less expensive at the time that you do your planning, it is relatively more costly at the time of your death due to the probate process that is involved. And, if a conservatorship is required during your life because of mental incapacity, additional and significant attorney fees and other costs are incurred.
- Wills do not involve all of your property and do not control how, when, and to whom all of your property passes. You want the ability to give instructions and control what happens in the future. Wills do not apply to a lifetime mental disability. Having a Will can create the necessity for “lifetime probate”—conservator and guardian court proceedings, which are not cheap and can be stressful for the family.
- On the death of the second spouse real estate and other assets owned solely by the spouse must be probated. If real estate is owned in more than one state, more than one probate must occur. This event is both a huge hassle for the family and involves significant and needless expense. Wills generally assure probate for some assets and can help create expenses, legal fees, and time delays. Legal fees and court costs can range anywhere from $1,500 to $6,000 for many probate estates depending on the type and value of the “probate assets.”
- Wills don’t necessarily fit all the different estate planning situations and goals. They often are not customized to your overall estate planning needs.
- All wills are not created equal. There is a difference in quality.
- Wills generally don’t provide estate preservation from creditors and predators of your adult or minor children and grandchildren.
- Wills don’t make it as easy as trusts to do overall planning: death tax planning, business planning, income tax planning, and “generation-skipping” planning.
- Will planning doesn’t always include a review of assets and how assets are titled. In other words, the entire plan is not coordinated. Pieces are left out of the jigsaw puzzle picture.
- Changes of wills must be signed with the formalities required by law.