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FAQ: Provisions For Children & Survivors

Are provisions for the care and guardianship of minor children usually provided for in a will?

In many cases, a will does contain provisions for minor children. However, a court can overrule these provisions with a specific reason or a justifiable challenge of guardianship from another interested party or family member. The judge may also find the designated guardian is incompetent or otherwise inappropriate due to character issues. A judge will determine final guardianship, even though the decedent’s wishes are given first consideration.

How does “joint tenancy” affect a will?

Joint tenancy with right of survivorship is a legal ownership option that is often used to pass ownership of a home without a will. Just note that joint tenancy can’t replace a will; it will only apply to real property, not other assets. It simply avoids probate for real estate. With this ownership option, the surviving tenant or owner — usually a surviving spouse — becomes the sole owner of the property regardless of what is in a will and outside the probate process. With this type of ownership, the property is not part of the decedent’s estate and not subject to the probate process.

Are there any specific rules about how property can be disposed of?

Yes. The court won’t follow instructions that are deemed inappropriate. A judge can void a part or all of a will that goes against the law or is otherwise considered inappropriate. A will cannot, for example, terminate someone else’s legal rights or claims.

IMPORTANT NOTE: Please be aware that the information on this page is delivered without warranty or guarantee of accuracy. It’s provided to help you learn more and formulate specific questions to discuss with your attorney and/or your Real Estate Professional and/or to help a personal representative, executor or executrix when executing their challenging responsibilities. By accessing this page, you acknowledge that it has been provided for information only and that you are hereby advised that any decisions regarding probate issues should be discussed with an attorney and/or a Real Estate Professional.