1. What are some of the advantages of a Will?
2. What is a will?
3. What are the primary disadvantages of Wills?
4. Can you provide an example of what you mean when you say that a will does not control all of my property?
5. Is it true that if I have a Will my estate will not be subject to probate?
6. Does my will take care of transferring property that I have in another state?
7. I have homes in two states, and I spend a considerable amount of time in both. I understand that this can cause tax problems. What should I know?

The most significant advantages of will-based planning include the following:

Wills avoid intestacy. If a person dies without a valid will, all of that person's probate assets will be transferred to heirs according to the laws of intestacy. State intestacy laws vary considerably depending on whether the decedent is survived by a spouse, the number of children surviving the decedent, and so on. Generally speaking, however, all intestacy laws, in varying degrees and percentages, seek to provide for the decedent's spouse, children, parents, and then more remote relatives. If no individual entitled to inherit the decedent's estate is found within the time prescribed by state law, the property will revert (escheat) to the state.

Thus, the primary advantage of having a will is that it permits distribution of probate estate pursuant to your wishes rather than the state's wishes.

Wills permit the nomination of a personal representative and a guardian for minor children. In addition to identifying who will receive your probate assets, wills allow you to nominate your personal representative (usually referred to as an executor if a male or executrix if a female). If you do not name a personal representative, the probate court will appoint an individual (often a close family member) who may or may not be the individual you would have chosen.

Similarly, a will permits you to name a guardian or guardians of your children. For most people, choosing a guardian of their minor children is a carefully reasoned decision and one that is best made by the parents and not the court.

Wills are easily implemented and maintained. In most instances, creating a will is an uncomplicated event. While certain individuals may wish to handwrite their own wills (called holographic wills) or use one of the many forms or computer software applications available to the public, most individuals engage the services of an attorney to ensure that their wills conform to the peculiarities of local laws.

Moreover, as attorneys become more technologically advanced, there is decreasing reliance on amendments, or codicils, to wills. Rather, once your will is part of the attorney's electronic files, the attorney often simply incorporates your intended changes directly into your will, reprints the document, and has you execute a new, updated will.

Wills can provide maximum tax savings, protect your children's inheritance from their creditors, and/or establish testamentary trusts to "ease" children into their inheritance. In theory, a "complex" will can provide many of the advantages found in a living trust-based estate plan. In fact, from a legal perspective, the actual language found in a complex will can be almost identical to the trust language of a living trust. Separate trust shares can be created for the benefit of a surviving spouse in an attempt to minimize or eliminate federal estate taxes, and separate subtrusts can be established to provide for the needs of children and loved ones.

The one overreaching caveat regarding wills is that although in theory they may provide tremendous advantages, in practice their usefulness often falls far short of the theoretical optimum. While wills can be effective planning tools for smaller estates, the more complex a person's affairs are, the less effective a will is in planning an estate. Here are some of the major shortcomings of wills:

Wills often fail to control a great deal of the maker's property. The greatest disadvantage of planning your estate with a will, especially if you have a larger, more complex estate, is that your will may fail to actually control the distribution of much of your property. A will controls only the property that is part of your probate estate. Your probate estate includes:

All property that is titled in your individual name and does not have a beneficiary-designation clause

All property that is payable to your estate or subject to a power of appointment

All property that you own as a tenant in common with another

A will cannot control your joint tenancy assets; they pass automatically to the surviving joint tenant. Nor can your will control assets such as certificates of deposit, individual retirement accounts, Keogh plans, and life insurance for which you have named your spouse, children, or other loved ones as beneficiaries.

Wills offer no protection against conservatorship of the maker. While a will can effectively appoint your personal representative and the guardians of your minor children, it cannot name or appoint an individual to protect you or handle your affairs in the event of your disability. Quite simply, your will does not become operative until the date of your death. Hence, should you become disabled, your financial affairs may well become subject to your state's guardianship or conservatorship proceedings.

Wills do not easily cross state lines. In order for your will to transfer the property that comprises your probate estate, it must be filed with the court in the state and county of which you were a resident at your death. While a will executed in one state is valid in another state, it will nonetheless be interpreted according to the laws of the state in which you are domiciled at your death. For example, if your will does not contain a specific clause directing that taxes be apportioned among a certain class of beneficiaries, State A may assess tax liability against each beneficiary according to the amount received by the beneficiary and State B might assess all tax liability against the "remainder" of your estate. Thus, unwittingly, by moving from State A to State B, you could shift the entire tax burden of your estate from each of your beneficiaries to just a select few who were named the recipients of the balance, or remainder, of your assets. Wills do not travel well..

Wills are fully public. Despite the fact that most people are reticent to discuss their financial affairs in public, give their latest income tax return to a stranger, or discuss their net worth or cash-flow difficulties at a cocktail party, a person who dies leaving a will to transfer his or her assets may well be exposing this very information. Quite simply, a will, all accompanying inventories, tax returns (in many states), statements of assets and liabilities, the identity of your beneficiaries, the amounts they receive, and the manner in which they are to receive your legacy typically may be filed with the probate court and open to public inspection.

No doubt, the late Jackie Kennedy Onassis had some of the finest lawyers prepare her estate planning documents. Nonetheless, because a will was the cornerstone of her estate plan, it took only a simple drive or a phone call to the courthouse to obtain a complete copy of all such information, and it was a top story on the news.

Your privacy cannot be maintained under a will, and the financial condition of your family and business can be open for inspection by anyone.

Wills ensure probate. Any asset controlled, disposed of, or transferred by a will must go through probate. Many believe that just having a will (or, more often, their particular will) avoids probate; but this is impossible. If your will is used to transfer any of your property, it must first be submitted to the probate court and then be administered in accordance with each and every rule inherent to your state's probate code.

Table 1
Mr. Jones' Assets

Asset		Value		How Titled
Principal Residence		$ 175,000		1/2 joint tenancy with right of survivorship with spouse
Stocks/bonds		200,000		1/2 joint tenancy with right of survivorship with spouse
CDs		60,000		Beneficiary designation:wife, else children
Checking account		11,000		1/2 joint tenancy with right of survivorship with spouse
Lincoln town car		24,000		Individually titled
Artworks and collectibles		28,000		1/2 joint tenancy with right of survivorship with spouse
Other personal property		30,000		Individually titled
Life insurance		225,000		Beneficiary designation:wife, else children
IRA		265,000		Beneficiary designation: wife, else children
Cabin in mountains		100,000		1/2 joint tenancy with right of survivorship with brother
Total		$1,118,000

Table 2
Mr. Jones' Assets after the Death of Mrs. Jones

Asset		Value		How Titled
Principal Residence		$350,000		Individually titled*
Stocks/bonds		400,000		Individually titled*
CDs		120,000		Beneficiary designation: wife, else children
Checking account		22,000		Individually titled*
Lincoln town car		24,000		Individually titled
Artworks and collectibles		56,000		Individually titled*
Other personal property		30,000		Individually titled
Life insurance		225,000		designation: wife, else children
IRA		265,000		designation: wife, else children
Cabin in mountains		100,000		1/2 joint tenancy with right of survivorship with brother
Total		$1,592,000
*Value doubled by reason of Mrs. Jones' death.

Under the Full Faith and Credit Clause of the U.S. Constitution, other states must recognize your will if it is properly probated in your home state, which is the state in which you are domiciled. However, this does not mean that real property outside your home state will automatically transfer according to the instructions set out in your will. Instead, a process known as ancillary probate or ancillary administration is required. Although another state will recognize and accept the beneficiary you have named, each state can determine the method and requirements for transferring real property located within its borders. Ancillary administration is a probate procedure which requires the filing of documents in the probate court of the town or county where the real property is located. Ancillary administration is basically probating the will twice but under different requirements depending on the states involved. Sometimes taxes must be paid on the value of the property before it can be transferred to the beneficiaries.

In most instances, ancillary probate proceedings require that an attorney in that state be retained, and if the executor of the estate is not a resident of that state, he or she may be required to post a bond with the court. Needless to say, ancillary probate involves additional costs and fees, leaving even less for loved ones.

Although you may have more than one residence, you technically have only one "domicile." It is important to determine which state is considered your domicile, because it is the law of that state which will control the operation of your estate plan and the taxation of your estate. Sometimes, by drafting certain language in your estate planning documents, you can select the law of another state to control the operation of those documents in order to obtain more favorable results; your advisors would assist you with the details.

The indications of domicile in a state include the following:

Where are you registered to vote?

Do you spend more than half of the year in that state?

Do you have your major religious and other social activities in that state?

Do you have a driver's license for that state, and do you have a car registered there?

Do you file an income tax return in that state?

If it is not clear from the above indicators which state is your domicile, it is important that you make an informed decision and develop facts and circumstances to support your domicile in the state which you choose. Otherwise, both states may consider themselves your domicile and impose state death taxes on your estate.