First of all: a will is a document. That’s it.

It is not an Estate Plan or a legal entity or even a contract (shocking, right?). It’s a document.

Once you realize it’s just a piece of paper with words on it, you don’t have to be so mystified, and you can focus on the important question:

What does a will do?

A will provides instructions to the probate court about the disposition of your property upon your death.

Very clear, yes?

Well, it’s as succinct an answer as you’re going to find. Let’s go through it a piece at a time, so you know what we’re talking about. The easiest way to get through it is backwards, so…

A will provides instructions to the probate court about the disposition of your property upon your death.

The first, most important thing about a will is that it only works when you are dead. It does not work if you are almost dead, missing, incapacitated, incompetent. This might seem like an obvious point, but it’s crucial to remember because it means it isn’t the place to specify healthcare directives or short-term guardianship. If there is any possibility that the instructions you are trying to provide should be triggered while you are still alive, then you need to find another place to put them.

A will provides instructions to the probate court about the disposition of your property upon your death.

A will is about stuff. Yes, yes- you can appoint guardians for your children in your will. And yes, you can leave a written account of your personal philosophy (that “testament” part of “Last Will and Testament”), but that doesn’t mean it’s the most efficient way of doing either.

A will provides instructions to the probate court about the disposition of your property upon your death.

Notice that the word disposition is really close to the word disposal, as in, “I always throw my garlic peels into the garbage disposal.” The will gets rid of things. It does not hold on to them. It cannot, the way a trust can, provide instructions for some amount of money to be kept safe for your kids until they grow up. Just like my garbage disposal is not the place to keep my garlic safe until I use it.

A will provides instructions to the probate court about the disposition of your property upon your death.

The probate court governs the process of disposing your property (see- it’s starting to come together). This means a few things.

• First of all, it means that the will does not have any power outside of the probate process. If probate hasn’t happened yet, the will is ineffective. If something avoids probate (a life insurance contract, for example), the will has no power over it. If you are trying to provide instructions that will have an effect after probate is finished (usually within a year of death), a will cannot help you.
• Next, it means that your instructions will be followed according to the court’s timeline, not yours. Probate has two speeds: slow and slower. If you are trying to provide instructions for things that need to happen on a more controlled timeline (like making sure your children have someone to care for them), then a will is probably not the best answer.
• Finally, remember that, barring a threat to national security, most court proceedings are open to the public. This means that your will is going to be entered into public record for anyone to see. Who would want to see it? Predatory salespeople, primarily. It isn’t hard to comb through the records at any courthouse, looking for vulnerable people inheriting money.

A will provides instructions to the probate court about the disposition of your property upon your death.

Instructions. Not commandments or decrees. The final decider of who gets what is a judge. Yes, of course, the judge is supposed to follow your instructions.
But…

• If you provide instructions that are trumped by other laws, they won’t be followed. You can write in your will that your life insurance proceeds should go to your children, but if your ex-wife is still the beneficiary on the policy, she’s getting the money.
• If there are creditors who can attach your assets, your instructions won’t be followed, unless you actually wrote in how much of your estate should go to the credit card company. It doesn’t even matter if you wrote, “My children get all my money, and MasterCard gets nothing.”
• If your instructions are unclear, contradictory, imprecise, or legally invalid in some way, they may not be followed.

So… Do you understand what a will does?
A will provides instructions to the probate court about the disposition of your property upon your death.

Simple, right?

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