What a Will Does and What a Will Cannot Do

 

WHAT A WILL DOES

  • Allows selection of beneficiaries by the testator (person making the will).
  • Allows direction of testator’s funeral arrangements.
  • Transfers assets held in the testator’s sole name that are not subject to transfer/payable on death designations or a beneficiary deed (for real property).
  • Disposes of personal property, including clothing, furniture, jewelry, photographs, collectables, etc.
  • Make a proposed appointment of a guardian for minor children (proposed appointments for guardians of children are not binding upon a court).
  • Make a binding appointment of a conservator (person who handles money) for minor children benefiting under a will.
  • Allows for creation of a trust for minor beneficiaries.
  • Allows testator to select his/her beneficiaries and the amount to be granted to each beneficiary.

 

WHAT A WILL CANNOT DO

  • Transfer assets held jointly or in tenancy by the entireties (at the death of one of the parties, the asset goes to the surviving party).
  • Dispose of property transferable or payable on death.
  • Transfer property which is already the subject of a beneficiary deed designating that someone else received the property at the death of the owner.
  • Revise, amend or revoke a living trust.
  • Deviate from the terms of an antenuptial agreement or a contract to make a will, presuming that such instruments are valid and binding.
  • Reduce the statutory rights of a surviving spouse (unless the spouse has agreed to such reduction under a valid and binding agreement such as an antenuptial agreement.
  • Make a binding appointment of a guardian for minor children.  Such appointments are subject to judicial review and discretion based on the situation of the children and potential guardians after the death of both parents.  This should not keep anyone from designating guardians in a will so that their preference is known.
  • Change the presumption that if one parent dies, the child or children will be in the care of the other parent.
  • Affect employee benefits under which a beneficiary has been designated.
  • Change the beneficiary of an IRA account.