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What is a will, and who should have one?

A Will is a written document, often prepared with the help of an attorney, which nominates Guardians for minor children, if any, names a Personal Representative (and often alternates as well) to handle the distribution of the estate, and provides instructions for the disposition of a decedent's (dead person's) property. The term "Last Will and Testament" is a more complicated name for a Will, but it means the same thing.

People who have minor children and want to nominate a Guardian or Guardians or who care how their property is distributed should have a Will. If a person doesn’t have a Will when he or she dies, then the courts decide who should be the Guardian(s) for minor children and state law says how the property should be distributed.

In most cases Guardianship of a child will go to the other parent when one parent dies, but if the other parent is already dead, isn’t interested in caring for the child, or is unfit, the custodial parent may want to nominate someone else as Guardian in a Will. There’s no guarantee a court will accept the nomination, but courts will usually give a nomination priority if no one objects or if the other parent really is unfit or uninterested. Parents also want to nominate Guardians for their minor children in case they are killed together. In that situation, the courts are very likely to accept the parents’ nomination of a Guardian.

Most states laws say that if a person dies without a Will (i.e. dies ‘Intestate’), property will be given to relatives in various percentages, such as to spouses, children, parents, siblings, and so on. If you have personal property that has personal meaning to you and you want it to go to someone specific, you need to have your Will reflect your wishes. So, even if you don’t have a large estate, you might make a Will so that you can choose who will get things that are meaningful to you.

If you have a large or complicated estate, a simple Will may not be the best estate planning option for you. Wills usually have to pass through a court process called probate that is often slow and costly. There are estate planning techniques to avoid probate, and you could save a lot of money for your heirs by getting advice from an experienced estate planning attorney.