Actions in a Will

First and foremost, the purpose for a will is to specify how you wish your estate to be distributed. For any property which you own, you can specify in your will who that property will be distributed to upon your death.

The main questions which arise in probate proceedings concern property ownership issues. Some states have laws that govern the ownership of property even if the title to that property is in the name of another. These are called community property states. Essentially, community property statutes create a presumption that a spouse has an ownership interest in the property of the other spouse, even if the title does not reflect this. While it is possible to own property separately and apart from your spouse in states with community property laws, there are requirements which must be followed to establish this separate property. This is an over simplification, but generally if a spouse fails to meet the requirements set by state law of the separate ownership of property, then the property is presumed to be owned by both spouses in some manner. Needless to say, litigation over this ownership interest and the degree of interest occupies an enormous number of the cases currently in courts.

It is important to note, for purpose of your will, that simply because you have property in your name it may not be yours to give away at your death completely. If this is an issue, the ownership of the property you intend to give away, or "devise" as the legal term is known, should be completely researched by a lawyer. Otherwise, you may end up with unintended results at your death.

For example, it is common for a person who has adult children to divorce and remarry. Assume that you were remarried and had one child and your spouse had one child. You and your spouse lived in the house you owned before the second marriage. If you are not careful to thoroughly research state law, on your death, although you might intend to give the house to your child, instead, your second wife, and perhaps thereafter her child, might end up being co-tenants with your only child instead. While this may be fine, imagine the havoc you may cause if they do not get along, or if one person desires to sell his/her interest in the house. This might be a nightmare, since the other owner might not have near enough money to "buy-out" the prospective seller. Court action and a huge family feud could erupt because of a simple sentence that seemed like an innocuous devise on your death.

General and Specific Gifts

In your will, when you give away property you own, you can generally give it to anyone. Typically, property is distributed to spouses or children in shares or in equal shares. You can also give away property to others, such as distant relatives, friends or charities.

Also, you can give away general gifts, such as "one-third of all of my property." Or, you can give away specific bequests, such as "my Monet oil painting in the living room." You should consider what happens when you make each of these kinds of gifts.

If you make general gifts, such as "one-third of my property," you may not cause too many problems, so long as one can locate "your property." The problem may come in that if you give away equal one-third interests in your property, you have not specified what is to be used to pay the expenses of your estate, which may be several thousands of dollars. In this situation judges will often order the sale of some or all of "your property" to cover these debts or expenses in your estate. The result is that the house which you intended your family to have ownership of may end up being sold. Be sure to consider these factors when you are making general gifts.

Other gifts of certain specified property owned by the person making the will are referred to as "specific gifts." An example would be if you stated that your coin collection should be left to your son. These type of gifts, while common, can often cause unintended problems. These problems, once considered, can easily be avoided.

One of the most common type of problems is where a specific gift is given, but the gift is no longer in the possession of the person who made the will. The problem is many probate courts will go to great lengths, usually by incurring lengthy delays, to ensure that every effort is exhausted to locate the specific gift. Sometimes the expenses incurred may also be substantial and, as it turns out, unnecessary. You should remember that most courts really make an attempt to ensure that the wishes of the person who made the will are understood and carried out by the court.

Another problem with specific gifts can be the unclear intent of the person making the will, when trying to decide which is more important - a specific gift to a person or a general gift to another. Let's consider the following example. Assume that a person making a will specifies that their coin collection worth $15,000 should be given to their friend, with whom they shared a mutual interest in coins. Now assume that the child of the person who made the will was to be given the house. At the death of the person making the will, assume there are no other assets in the estate, and no other relatives alive. What should the court do in probating the estate? Should it sell the coin collection in order to pay the debts of the estate and thereby seek to preserve the house? Or should it order the house sold to preserve the coin collection? Sometimes the intention of the person making the will is very clear.

Sometimes, however, these intentions are not so clear. You should be careful to give serious thought to each gift you make in a will, whether it is specific or general. You should also draft these gift provisions to ensure that there is no confusion as to your intentions in dividing your estate.

Also, remember that specific gifts can cause problems, if you fail to amend your specific gift provision at a later date, when you may wish another person to receive the gift. This happens all the time. A well-intentioned person decides to give a specific gift when they make their will. However, years later, they have or adopt children and would rather that same gift now be passed onto their child. This will not happen if the earlier will is not changed [properly] or a new will is not made.

If you have questions about probate or dividing your estate, we can help. Contact member services to speak to an attorney.

Posted in: Estate Planning