Will Basics: What is a Will? What is Probate? What happens if I die without a Will? Who will look after my children/ dependents if I die without a Will? Your Property: Can my Will cover my entire Estate? What if there is not enough property to fulfill my wishes after my death? Are my debts forgiven when I die? How do my debts affect my Will? What about tax planning? What happens with insurance proceeds when I die? What happens with my pension when I die? Is there any entitlement from the government when I die?

Validity of your Will: is a BuildaWill Will legally binding as soon as I print copy of it? I have a Power of Attorney, do I still need a Will? Do I need an attorney to make my Will legal? Can people challenge my decisions after my death? What happens if I do not complete my Will properly? Does my age matter? Changing your Will: How can I change my Will? When can I change my Will? Does marriage, re-marriage or divorce affect my Will Care and Maintainance of your Will: Should anyone know that I have made a Will? Where should I keep my Will? Who should know where I keep my Will?

What is a Will?

A Will is a document containing directions setting out how the property of the person making the Will (the “Testator”) shall be distributed upon his or her death.

What is Probate?

Probate is a Court proceeding in which the validity of a Will is established and, in general, the distribution/administration of the property which passes under the Will.

What happens if I die without a Will?

If you die without a Will or valid Will, the outcome could be a legal and financial nightmare as well as an emotionally-devastating experience for your loved ones. Not having a Will at the time of death is called being Intestate. It means you have not left instructions setting out how you want your assets to be dealt with on your death and have not appointed anyone to be legally in charge of your Estate (known as your "Executor"). A Court in your jurisdiction eventually appoints an Executor. Nothing can be done with your Estate until the court appoints an Executor which can be months after your death. If no family member applies to act as Executor, a government representative is appointed. Your Estate will be distributed in accordance with the formulas of the laws of your State or Province. Those laws are inflexible and may not reflect either your personal wishes or the needs of your loved ones.

Who will look after my children/dependents
if I die without a Will?

If you have children and die without a Will nominating a Guardian for your underage children, your local State or Provincial law applies. Typically, the law provides for the child's surviving parent to take custody of your child but ultimately, the decision is up to the Court relying on what the judge feels is most appropriate for the surviving child. A relative or other person can apply to the Court for an order appointing them as Guardian. Completing a will and nominating a Guardian provides the greatest assurance that control and custody of your children is granted to the individual(s) you prefer.

Your Property:

Can my Will cover my entire Estate?

Probably not. There are many assets that may pass to your intended Beneficiaries without naming them in your Will. For this reason it is important that you create an inventory as part of your overall estate planning. This way you can be sure that all of your assets will go to those you intend. Below we briefly summarize some specific examples of property that does not pass through a Will. If you have any questions, a financial advisor or estate planning professional can help you understand your own personal situation.

Some of your assets will pass outside of your Will because Beneficiaries are already named to them. For example, most individuals have already named Beneficiaries for their life insurance policies, pensions and retirement plans like an IRA or 401K, and certain annuities.

If your property is held with another individual in the following manners and that co-owner survives you, it will not pass through your Will: joint owners with right of survivorship (usually spouses), tenants by entirety (spousal real estate) and revocable or irrevocable trusts.

Also, be aware that in some jurisdictions that recognize community property, you can only give away the portion that you own.

What if there is not enough property to fulfill my wishes after my death?

If there are not enough assets to fulfill your wishes regarding specific Bequests of cash, these Bequests will be reduced proportionately. If there are only enough assets to deal with your specific Bequests, the person(s) you leave the balance of your Estate to will receive nothing. Specific gifts are assigned to beneficiaries before any of the residue is distributed.

Are my debts forgiven when I die?

No.

One of the duties of an Executor is to determine the debts, including taxes, of the deceased person. The Executor must determine what debts you have and must satisfy those debts, including taxes, from the proceeds of your Estate prior to distributing your Estate to your Beneficiaries.

How do my debts affect my Will?

Your debts are paid from the proceeds of your Estate prior to distribution of your Estate to Beneficiaries.

What about tax planning?

The following tax facts are only highlights of a very important issue. The tax law continues to evolve, and your situation will differ depending on the size and makeup of your Estate, the state in which you reside, and the persons to whom your Estate passes. It is important to evaluate your particular situation as part of your own estate planning process, whether self-guided or with the assistance of a financial advisor or estate planning professional.

If you pass away with a large Estate you may be required to turn over some of your Estate to your federal and state government. The tax will come in two forms, estate taxes and inheritance taxes. Essentially, the end result is the same, your estate is taxed before it passes to your heirs.

Estate Taxes are levied against the value of the entire Estate and are paid by the Estate before transfer. Inheritance taxes are levied against the value received by a person as an inheritance from an Estate and are paid by the person receiving the inheritance. The rates will typically depend on the relationship of the heir to the deceased. For example, a spouse may have a reduced rate or a total elimination of the tax.

Federal Taxes
In general, most U.S. estates are not subject to estate and inheritance taxes. As reported in the Spring 2001 issue of the Internal Revenue Service's SOI Bulletin, on average, less than 1.5 percent of U.S. estates were subject to the Federal estate tax between 1982 and 1996. Currently, the federal government excludes the first $675 thousand from taxation. That amount will increase over the next several years based on the following schedule.

State Taxes
The tax treatment of an Estate can differ greatly from state to state. Like the federal government, most states do not tax Estates unless they are large, and then they take only a portion of the amount that the federal government would have taken anyway.

What happens with insurance proceeds when I die?

The death benefit payable under a life insurance policy is received tax free by the deceased’s Estate or by one or more named Beneficiaries. Insurance proceeds left to your Estate are then dealt with pursuant to your intentions set-out in your Will. Insurance proceeds left to a specific named Beneficiary do not form part of your Estate and pass directly to the named Beneficiary.

What happens with my pension when I die?

There are many types of pension plans and you should make specific inquiries to determine what will happen with your pension upon your death.

Is there any entitlement from the government when I die?

There are various government pension plans, which may be available to your surviving spouse after your death.

A death benefit may be paid to your Estate from the government if you made contributions for a minimum qualifying period.

You should check with the appropriate government authority/representative in your area.

Validity of your Will:

Is a BuildaWill Will legally binding as
soon as I print a copy of it?

A will is only considered legally binding once it is properly signed and witnessed. Every will generated by BuildaWill™ is accompanied by care and maintenance instructions that will inform you on how to make your will legal within your specific jurisdiction once it is completed. If you should decide not to make your BuildaWill will legally binding, simply do not sign or have the document witnessed.

I have a Power of Attorney. Do I still need a Will?

A Power of Attorney designates someone to deal with your assets only while you are alive.

A Power of Attorney comes to an end on your death.

A Will is needed to deal with distribution of your assets on death.

Do I need an attorney to make my Will legal?

No. It is not a legal requirement that a will be prepared by an attorney. You may however, wish to consult your attorney and accountant depending on the complexity of your financial and personal situation. BuildaWill is not a substitute for the advice of a lawyer.

BuildaWill has examined and reviewed it's application on every level. A Will properly prepared through BuildaWill is valid and enforceable in each state in the US with the exception of Louisiana.

Can people challenge my decisions after my death?

It is always possible that people may challenge a Will after your death. Such challenges are generally arguments that you were not mentally competent or that others pressured you at the time your Will was made. While these challenges are generally unsuccessful, you should seek legal advice if you feel someone may challenge your will.

What happens if I do not complete my Will properly?

It is extremely important that your Will be completed properly.

If your Will is not completed properly, there is a risk the Will will not be valid. If that happens, it is equivalent to dying without a Will, ie. Intestate, and State/Provincial law applies distributing your Estate in accordance with the formulas of the laws of your State/Province. These laws are inflexible and may not reflect your personal wishes or the needs of your loved ones.

Does my age matter?

You must be of the age of majority to prepare a valid, legally-binding Will.

Changing your Will:

How can I change my Will?

A Will can be changed by preparing a Codicil which is a document amending your Will. A Codicil must be signed and witnessed in the same way as a Will.

Codicils are intended to deal with relatively minor changes to a Will. If major changes are required, it is preferable to have a whole new Will prepared.

BuildaWill does not currently provide forms to complete a Codicil. However, BuildaWill is easy enough that you can easily redo your entire Will in the time it would take to prepare a Codicil.

When can I change my Will?

Your Will can be changed at any time provided you are of sound mind (mentally competent) at the time you wish to make the change(s).

Does marriage, re-marriage or divorce affect my Will?

Depending on the state or province that you reside in, getting married or divorced may automatically revoke your will. We have compiled some basic information about revocation of wills by state and province in BuildaWill's Estate Planning Guide.

Care and Maintainence your Will:

Should anyone know that I have made a Will?

Yes. You should tell your Executor that you have prepared a Will. You may also want to tell your loved ones.

Where should I keep my Will?

Following the completion of your Will, you will now wish to place your Will in a safe place.

Most individuals consider a safety deposit box for the storage of their Will. However, access to the safety deposit box can be difficult if it is not jointly held. An alternative to the safety deposit box is a home safe or a fire proof storage box in your home.

Who should know where I keep my Will?

There is no point preparing a Will if it cannot be found. If your Will is kept in a safety deposit box at a bank, a note should be made indicating that the Will is stored in the safety deposit box and the key to the box should be left somewhere where the Executor can find it.

It is also advisable to have copies made of your Will. One copy should be stored with your personal papers again so it can be easily located.

You should consider telling your Executor or loved ones where you have stored your Will.