Documents Needed For Estate Planning: The Will

The will serves two functions. First, it's the document where the parents of minor children nominate guardians of the children’s person and estate.

The guardianship of estate is a court-supervised management of the minor’s assets, to benefit the minor. The guardianship terminates on the minor’s 18th birthday. The guardianship of estate can be completely avoided with a revocable trust, a number of other less-flexible solutions.

The guardianship of a person is the process to appoint a legal guardian to the child: someone who would have authority to enroll the child in school, take them to the doctor, etc. The law does not actually require each child to have a guardian, but majority of the institutions that children deal with on regular basis do. So, if a child’s parents pass away when the child is 17.5 years old and doesn’t need to switch schools or go to doctors, a legally appointed guardian is not necessary. However, if I guardianship is needed, there’s no magic legal document to avoid court involvement, as is the case with the guardianship of estate.

The second function of a will is to provide for the disposition of the testator's (the person writing the will) property. In a case where there is no trust (for example, for clients that don't own any real estate and have no minor children), the will is where they describe in detail what they want to happen to their stuff ("my car to my nephew and my jewelry to my niece.")

However, if there’s also a revocable living trust, the detailed description of disposition goes into the revocable trust. Then, the will is called a “pour over will” which means that it serves as a backup to transfer any assets that the person forgot to transfer into the trust, into the trust. This kind of will literally states "I give all my property to the trustee of my trust."

This serves as a backup in case the testator actually forgot to transfer his or her assets to the trust before dying. In that situation, the surviving relatives of the deceased may petition the court to transfer the left-out-of-the-trust assets into the trust. The tool available for this person is called a "Heggstad" petition, and it tells the judge that if the attorney were to probate the will, i.e. put the estate through probate in order to transfer it to the intended beneficiary, the result would be the estate would be in the hands of the trustee. So we could skip the prolonged and expensive probate process, and just transfer the estate to the trustee right away, so that they can proceed with a trust administration.

Remember, with death and property, there are always things that must be done, and I'm happy to help, or just answer any questions you have.


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