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January 03, 2013

What Is A Will

A will is a testamentary directive to give one’s property to certain donees or beneficiaries. A will is revocable at any time prior to one‘s death. For this reason, it is said that wills are ambulatory. Ambulatory is defined in Webster’s as “moveable or walkable”, and it notes that a form of ambulatory law is a Will.

Wills are more flexible than trusts. Some trusts are irrevocable, but a Will is by its nature always revocable. You might change your mind about making a gift to a friend because he or she might no longer be your friend many years from now when you are close to death. All you have to do in New York to cancel the gift is to make a new will. The old will is deemed revoked by the new Will. With an irrevocable trust, however, that gift to your friend would remain in place unless you could get both the trustee and your friend to agree to reform the trust. So wills have advantages over trusts in being more easily changed to fit the current desires of the testator (Person making the will).

Intestacy, i.e., death without a will, can lead to some unfortunate consequences for those closest to the decedent. For example, I once handled an Estate for a man survived by a wife and minor children, but he had not made a will at the time of his accidental death and this resulted in his property having to be shared by the wife and the children under the law of intestacy.

For the reason of a possible accidental death, anyone who owns any type of property of substantial value should have a will. This way you determine who will get your property upon your death.
In addition to determining who gets your property upon your death and how much they receive, you can choose who will be in charge of your Estate. The will contains an appointment of a fiduciary to handle the responsibility of marshaling assets and distributing them to beneficiaries. This person is called an Executor.

A will is a basic tool for Estate Planning. Everyone should have one.