The Will (often known as a “Last Will and Testament) has long been a staple of estate planning. A will is generally considered the simplest and easiest estate planning tool. In its most basic form, it names a personal representative (the person in charge of distributing all the property and carrying out the will, sometimes called an executor) and gives that person directions on how the property is to be distributed (“equal shares to all my children,” for example). It is also used to give directions for burial or cremation. For those with children under the age of 18, a will is used to nominate a guardian and conservator for the children.
Because it is relatively easy to set up, a will based estate plan is usually cheaper. However, because a will must be filed with a court (a process called “probate”), it is more complicated and expensive for a person’s heirs and beneficiaries to use. It can use up money that would otherwise pass to the children, and the probate process can delay distribution of the assets for some time, particularly if the will is contested. It is also less flexible than the trust, giving people less control over how their assets are used or distributed. For example, if a person wants to make provisions for a pet, or wants their assets distributed on a schedule (for example, when their heirs reach a certain age) a trust is necessary. For these reasons, the will has been surpassed by the trust as the estate planning tool of choice, though it remains a viable option, particularly for young people or young families with fewer assets.
Although we encourage our clients to use a trust based estate plan, we are happy to prepare a will based plan, which includes a medical directive and a general, durable power of attorney.