How do you ensure that your belongings are properly distributed between your friends and family after death? A common answer is to use a will – but what sort of property can and cannot be distributed via a will? Also, how does a will choose and bequeath an inheritance, and how do you go about including bequests in a will? While wills are helpful, they are far from the only way to leave your financial legacy to your loved ones and are often – but not always – less than perfect.
An essential first step is to learn how a will works – and what type of bequests to make—knowing when, how, and why to use a will can help you improve your understanding of how property and assets are distributed after death. It also informs you how to make the most of your estate and ensure that your loved ones receive as much as possible.
A bequest is an act of bequeathment through a will. It involves naming someone as the beneficiary of your jewelry or other significant assets.
Bequests are traditionally limited to non-real estate. This means anything added to a will that is not real estate but some other form of personal property would be distributed through a bequest. When naming a beneficiary for a piece of land or something tied to a piece of land – like a house – you perform a device. Colloquially, the terms are used interchangeably.
Bequests can be customized to serve a particular purpose. For example, a general bequest involves gifting $180,000 to a beneficiary through your will. A specific bequest would involve naming a beneficiary for your vintage Porsche model.
The how and why of distributing your belongings is entirely up to you, provided that the assets you intend to distribute are yours to bequeath onto others and are not already distributed elsewhere. A will can include any of four basic types of bequests, and there is only one limit to how many bequests you might make: the extent of your estate. These four bequests include:
Whereas a will is a document acting as an official set of instructions left behind for the living, a living trust is a legal entity established and funded. At the same time, you are still alive, acting as an intermediary owner and manager of certain assets and properties – through the actions of a qualified proxy, called a trustee – until such a time that it is dissolved, distributing its contents between selected beneficiaries.
Trusts have the added benefit of allowing for greater flexibility and control when devising your bequests. For example, only a trust can create a contingent bequest. A contingent bequest is essentially a set of instructions you must follow before claiming an inheritance.
Usually, these instructions contain something like "continue the family business" or "obtain a complete college education." Contingent bequests might also be more specific. To the point that they might even control how a beneficiary should use their inheritance.
While trusts are helpful, they are limited by the capabilities and reliability of your trustee and their cost – wills are a single static document. Still, a trust is an operation racking up significant expenses over time. It is generally a good idea to use a trust when managing investments or wealth that appreciates with time. This can help the trust pay for itself while creating financial security for your beneficiaries.
Once a will is written, signed, and notarized, it becomes your last will and testament. However, you can amend your will with specialized amendments called codicils.
These are like overriding notes that you can add to a will, provided they are correctly formulated, witnessed, and notarized. An amendment to a will must be explicit in what it aims to change and how. Amendments or codicils must be witnessed and notarized in the same way as the will itself.
A will that has not been properly witnessed or notarized is much harder to legitimize in probate and much easier to challenge as illegitimate if any beneficiary has a problem with it. This rule has a few exceptions, such as an entirely handwritten will.
Precise instructions are crucial. Making minor amendments to a will over the years avoids creating an entirely new document. But as you accumulate changes, creating a new will may become pertinent. A new will reflects your current wishes and avoids mistakes in interpretation and execution.
Wills are essential documents. However, they only become valid and legitimate upon being reviewed by a probate court during a probate process. Probate occurs once a decedent's loved one issues the petition to begin probate through their death certificate.
Some bequeathments legally occur at the moment of death, however. Suppose you have previously signed and notarized a deed naming your child or grandchild as the beneficiary of your vintage Porsche. It doesn't matter whom you assigned to it in your will – the will can no longer distribute that asset.
Similarly, some assets, such as the remainder of your retirement fund or the contents of a life insurance policy, are never meant to be distributed via a will. These are distributed upon your death to chosen beneficiaries, regardless of your will.
Wills are not all-powerful, and specific provisions and documents supersede them. Based on your estate plan, there may be items you can't include as bequests in a will. After all, you had already set up a beneficiary for them years ago.
Therefore, planning cohesively is important – estate plans should not be updated piecemeal but should be reviewed and revised in their totality every few years. Work with an estate planning professional to minimize mistakes and ensure your vision for your estate is realized.
Founded in 1975 by L. Rob Werner and serving California for over 48 years, our dedicated attorneys are available for clients, friends, and family members to receive the legal help they need and deserve. You can trust in our experience and reputation to help navigate you through your unique legal matters.
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