Save your kids some serious grief and make a will. When a person dies, the law provides a way to dispense of their leftover stuff. The legal process of dividing up and closing a deceased person’s estate is called probate. Just like there is family law court for divorces and a criminal court to handle criminal matters, there is a separate probate court assigned to administer all probate matters in a given jurisdiction.
A will is basically a set of instructions to the probate judge on how your estate is to be handled. The will should contain several important elements including:
- A person named as your personal representative. This person is responsible for handling your estate following the death of the testator (the person making the will).
- Instructions on who is to receive the residue of the estate. The residue of the estate is what is left over after creditors and costs of administration have been paid. The people listed here are considered your “heirs.”
- A designation of guardian for minors. I cannot emphasize enough that young families need wills more than more mature families with no kids at home because a young couple choosing who will care for their minor children is more important than an elderly person choosing who gets a prized nativity set.
- Any specific distributions. Specific distributions are those gifts going to specific people. Those getting specific gifts actually get their distributions before the heirs split the residue.
If there is no will the process is much more complicated. Anyone who could inherit under the law must be notified and agree to the court’s approval of a personal representative. With no instructions from a testator, a person’s belongings are collected and sold and the proceeds divided up among whoever the default law determines are the heirs.
Intestacy (when a person dies without a will) opens a big door to conflict. You may say to yourself, “I don’t have anything to fight over.” Yes you do. While I have been on cases with parties fighting over millions, I have also sat through court ordered mediation where the major sticking point came down to cheap household furniture. Common sense takeaway: Don’t let sentimental value to your kids turn into actual value to lawyers; enjoy Heaven with no regrets, make a will!
Chris Morgan is a licensed Utah attorney practicing elder law in Lehi. He can be contacted at (801) 874-5644 or http://www.elderlawutah.com.
