Answers to Frequently Asked Last Will and Testament Questions
When an individual or an estate has one person who is named with Power of Attorney and a different person named as Executor for a Last Will and Testament, a circumstance can exist where questions arise as to who takes responsibility — and at what point — for financial matters of the Maker of each document.
But the law makes it clear when each person’s fiduciary responsibilities are in force.
If parents wish to Will ownership of their home to one specific child or to specific children, the Will should clearly state as much.
If parents wish to Will ownership of their home to all children equally, the Will should clearly state as much.
But to create a Last Will and Testament stating an equal distribution should be made amongst all children AND certain children can live in the property after the death of both parents is a conflict that a Probate Court would need to resolve.
For clarity purposes, when listing blood-related children and step-children within a Last Will and Testament, Living Will or Living Trust, it is suggested that all children be specifically listed in the document by name and then referred to as “my children”. No designation past that is required.
There is no legal obligation by the Maker to show his or her Last Will and Testament to anyone during the life of the Maker of the Will. But after death, the process has some requirements.
If a person making a Last Will & Testament wishes to include ANYONE in a Will, the maker of the Will should list that person specifically as a beneficiary — even a child, step-child or adopted child.
Listing a person by name in a Last Will and Testament clears up any potential confusion that could arise.
Whether or not a beneficiary listed in a Last Will and Testament pays taxes on the assets provided in that Will depends on whether the decedent\’s estate is of sufficient value that estate taxes (be they federal, state or local) will be levied upon the transfer of the property.
The short answer is, it depends upon the value of the estate.
This question addresses a highly complicated legal situation.
In retrospect, the best way to effectuate the desires of the father in this situation would have been to change the property’s Deed to grant a ‘life estate’ to the stepmother, with a remainder interest to the children. That way, the mother was free to reside in the home for the duration of her life and upon her death the ownership would have passed to the children.
But even in the probate of the estate after the father’s death, such a situation can be created. If the father used a Will rather than a Deed to convey his wishes, the probate process itself can be utilized to create the same ‘life estate’ result, with a life interest being transferred from the probate estate to the stepmother while she is alive and a remainder interest to the children after she passes.
Either way, both of these process can be complicated and the use of a qualified attorney is highly recommended.
If a person is not named directly as a beneficiary, administrator or executor in a Last Will and Testament, there is no legal requirement that a copy of said Will be provided to a person simply because they are a relative of the Maker.
There is no requirement that any person leave any gift or bequest any piece of an estate to any child or children though a Will. Directing assets through a Will is at the discretion of the Will’s maker.
There is a substantial difference between receiving assets distributed from a Will, and being named as a potential future beneficiary in a Will — as well as how that distinction is treated legally.