Wills FAQs

Most people are at least familiar with the concept of a Last Will and Testament. A Will is a legal document that is used to express the Testator’s (creator’s) wishes with regard to his/her estate assets and what should be done with them upon the Testator’s death. Gifts made in a Will may be general or specific. An example of a general gift would be gifting “half of my estate to my daughter.” Gifting “my toy car collection to my daughter” is an example of a specific bequest. Along with making gifts of estate assets, a Will offers the parent of a minor child the only official opportunity available to indicate who the parent would want to serve as Guardian for the minor child if one is ever needed. Finally, a Will allows you to decide who will oversee the administration of your estate through the appointment of an Executor.

It is tempting to appoint a spouse, friend, or family member as the Executor of your Will because you undoubtedly trust them to have your best interests at heart. While that may be true, you should take the time to consider if that individual is really the best person for the job. The Executor of a Will has a number of duties and responsibilities, many of which are best carried out by someone with a legal and/or financial background. In addition, someone extremely close to you will be grieving your loss and may not be capable of focusing on the duties and responsibilities of an Executor.

No – you are not too young. The truth is that every adult, regardless of age, should have a Will. You can always update your Will and add to your estate plan when you are older and have a family and/or a larger estate; however, you are never too young to have a basic Will in place.

The value of your estate does not determine the need for a Will. While your overall estate plan may grow as your estate grows, you do not need to own valuable assets to benefit from executing a Will. After all, you undoubtedly care what happens to the assets you do own right now even if they are not extremely valuable. Likewise, you probably care who handles the probate of your estate and you certainly have an opinion with regard to who should be appointed as your children’s guardian, if applicable.

If you die without a valid Will in place you will be said to have died “intestate.”  In that case, the State of Indiana decides how your estate assets are distributed using the Indiana intestate succession laws. Typically, this means that only close relatives will inherit from your estate. Close friends, a favorite niece or nephew, or a charity/church that is near to your heart won’t receive anything.

People frequently make the mistake of thinking they can save time and money by using a “DIY” Will form they found on the internet. Unfortunately, you are more likely to cost your loved ones unnecessary time and money when it comes time to probate your estate by using these forms. DIY Will forms are notorious for having mistakes, errors, and omissions that lead to protracted litigation during the probate of an estate. That litigation delays the distribution of estate assets and diminishes the value of the estate because of the costs involved in litigation. Considering that your Will may be the most important document you ever create, working with an experienced attorney should be worth the time and money.

When he/she learns of you death, the individual you appointed as your Executor should begin the probate process. This requires him/her to submit your original Will along with a certified copy of your death certificate and a petition to the appropriate court for probate. Eventually, the terms of your Will dictate how any remaining estate assets are distributed at the end of the probate process.

When your Will is submitted for probate, any interested party has the right to contest the validity of the Will. Contrary to what many people believe, a Will cannot be contested simply because the contestant is unhappy with the inheritance left to them (or lack thereof). To be successful, a contestant must prove one of a select few legal reasons why a Will can be declared invalid in Indiana. The Executor of the Will is responsible for defending the Will during the litigation. If the contestant is successful, the Will is declared invalid. The court must then look for a previous, valid, Will to use to probate the estate. If an alternative Will does not exist, the state intestate succession laws will be used to distribute the estate. If the contestant is not successful, the Will is upheld and the probate of the estate continues.