Wills let us direct what happens to our possessions when we die. To some extent, they enable us to influence what happens to our children and the recipients of our property after our deaths. Our power to shape the future through our wills is not unlimited, however. The law of wills is structured so as not to give the maker of a will (called a testator) an unreasonable degree of control over the lives of people still living.
Wills dispose of property.
Your will tell the rest of the world what to do with your property when you die. Wills usually specify the who, what, and how of the distribution of our property.
Of course a parent’s will can leave the good china to their older daughter and the jewelry to their younger one, but that’s only the beginning. Here are a few examples of the different ways to give away property in a will:
- The gifts made in a will (called bequests, devises, or legacies, depending on the nature of the property being given) can be of a defined value, say $10,000, to be satisfied with any available assets in the estate, or of a particular piece of property.
- The gifts can be conditional: $10,000 to Sally, if she has completed college at the time of the testator’s death. (But be careful when imposing conditions: the wording matters, and enforcement might be impractical or against public policy.)
- Wills can create trusts, called testamentary trusts, that come into existence upon the death of the testator. Let’s say Henry wants to leave most of his assets equally to his two daughters, but he’s worried that one daughter might need more than the other. His will could say that 80% of his assets should be divided equally between the girls and given to them outright, and the other 20% should be held in trust, to be distributed according to the girls’ needs.
There are more ways to distribute property than I can explain. It can be useful to discuss your goals with your trusts and estates lawyer rather than trying to come up with the distributions on your own.
Wills nominate guardians.
In Virginia, a parent’s will can appoint a person to take care of any minor children (a guardian of the person) and another person to manage any property the children inherit from the parent (a guardian of the property or estate). It’s important to name guardians by will because a parent’s appointment of guardians in a will is given special legal effect under sec. 64.2-1701of the Virginia Code.
Wills name a personal representative.
A will is a piece of paper with instructions on it. A personal representative (called an executor, if named in a will, or an administrator, if not named in a will), is ther person responsible for carrying out the instructions. The personal representative’s responsibilities include finding and inventorying your assets (including the ones in your basement or attic), filing tax returns, and dealing with the sibling you disinherited. A will can name the person who should serve as the personal representative. The person named can, of course, decline to serve.