Libera Knapp Law: Winona Minnesota Attorneys

Wills

Definition of a Will

A Will is a written document which disposes of one's property after death. A Will is also used to nominate an executor of your estate, to designate a guardian or conserator for your minor children and to create certain trusts for distributions to minors or children with special needs. Certain strict legal formalities must be satisfied to ensure that your Will is legally valid and enforceable.

Types of Wills

The type of Will that is best for you depends on a variety of considerations discussed below. Libera Knapp Law Office is prepared to discuss with you and your family the type of Will that best fulfills the needs of you and your family and is appropriate for your unique situation.

Simple Will

For those with modest estates and no minor children, a simple Will is likely appropriate. Candidates for simple Wills have estates significantly below the applicable exclusion amount (i.e., the value at which your estate is subject to federal estate tax, currently $3.5 million in 2009).

Simple Will with Guardianship and Contingent Trusts

For those with minor children and /or with elderly parents or other relatives who may not be competent to manage finances (such as minor nieces and nephews) are good candidates for Wills with guardianship provisions and contingent trusts for children. The main reason for using this type of Will is to avoid the cumbersome and expensive legal guardianship requirements that exist when a minor beneficiary inherits property. Because a court-appointed guardian is required for any property passing to a minor, the complexities and cost of such property guardianship should be avoided through proper drafting in the Will.

Wills with Marital Deduction Planning

Candidates for this type of Will include married couples whose estates will be subject to federal estate tax. The marital deduction does not actually eliminate any estate tax. It is simply a deferral device where the surviving spouse may inherit the deceased spouse's property without having to pay estate taxes until the surviving spouse dies. Upon the surviving spouse's death, the entire combined estate will be subject to federal estate tax.

To accomplish the goal of avoiding estate tax on the death of the second spouse, and to provide financial support and security for the surviving spouse, a "disclaimer" or "bypass" trust often is used. Properly drafted, this trust permits distribution of income and principal from the trust to support the surviving spouse. After the death of the surviving spouse, the property in the bypass trust is not included in the surviving spouse's taxable estate and may remain in the trust or be distributed to children or other beneficiaries.

Pour-Over Wills

This type of Will is appropriate for those who wish to establish a Revocable Living Trust to manage and administer their estate (see the FAQ's page for reasons why you should consider establishing a revocable living trust ). The pour-over Will is used to transfer any property that remains in your individual name (i.e., which hasn't been put in the trust) at the time of your death.

Wills with Advanced Tax Planning Techniques

Individuals and married couples with estates exceeding the federal estate tax exclusion amount may wish to consider a variety of different tax planning techniques to minimize their overall federal estate tax liability. For example, if you would like to distribute part of your estate to individuals who are more than one generation younger than you (e.g., a parent to a grandchild) you should consider integrating Generation-Skipping Transfer Tax Planning in your Will to take advantage of the generation-skipping transfer tax exemption.