What is a Will?
A will is a legal communication or testament which outlines how a person or testator would like their property, possessions or estate to be distributed at their death. Individuals who die without a legal will (intestate) will have their property distributed, not according to their wishes, but according to state law. Generally, wills cannot be oral (although exemptions exist in some states) but must be written and signed in the presence of witnesses.
A will accomplishes three things:
- It allows the testator to clearly outline how they want their property and assets distributed.
- It allows the testator to name an executor to manage their financial affairs.
- It allows the testator to name a guardian for their minor children.
Although there are several different types of wills (handwritten, holographic will without witnesses, oral will, and self-proving will) every state has outlined specific requirements and not every type of will is legal in every state. Talk to an estate lawyer for more information about how to create a valid will in your state. General requirements for creating a will are listed below.
- The creator of the will or testator must be either 18 or 21 years of age (age varies by state) and must be of sound mind at the time the will is created. Mental competence includes the knowledge that they are creating a will, the type of property they own and the names, locations and dates of birth of their spouse, children or other immediate family members.
- Generally, the will must be signed and dated by the testator and witnesses. Whether witnesses are need and the number of witnesses needed can vary by state. Generally, the testator and the witnesses must sign the will in each other’s presence and the witnesses must be considered of sound mind at the time of the signature.
- The testament must clearly state that it is a will.
- The will may or may not need to be notarized.
- The will should specifically state that you, the testator, is of sound mind.
- The will should name a guardian for minor children.
- The will should list who is to inherit the items of the estate and what items will be distributed.
- The will should list how to distribute property which is not outlined in the will.
- The will should declare the executor of your estate. This person is responsible for paying debts and taxes owed and distributing the property of the estate after the testator dies.
Failure to meet the basic requirements outlined in state laws can invalidate the will. Seek legal guidance from an estate or probate lawyer for more information about the laws in your state. Do not create a will which is vague or which does not clearly outline your wishes. If your will is not clear the courts will have to discern your wishes to the best of their ability.
Can I Make a Will Myself?
Many individuals who have the time and resources to study state laws may not need to consult an estate lawyer to prepare their will. They should, however, understand the technical requirements outlined above. Creating a will without a lawyer may be necessary under some conditions: there is no time to consult a lawyer, there is limited money to hire an estate lawyer, or there is an emergency.
If there are specific legal issues which should be addressed or if the estate is large, consulting an estate lawyer can help the family of the deceased and potentially save time and money.
Wills should also be stored in a safe place. They do not have to be registered or filed with any type of government or state agency, but the executor of the will should know where it is located.
A will can be updated, but it must be done by either creating a new will or amending the existing will with a codicil. Given the ease of reprinting new wills with computer programs, a codicil has become less common, but if a codicil is used, it is created using the same form as the original will and outlines the changes to the existing will. The codicil must be witnessed and signed.
What if you have had major life changes such as a divorce, marriage, inheriting money or birth of child? Major revisions should be done by creating a new will and adding a statement in the new will that clearly revokes the old will.
Changes to wills after the death of the testator are uncommon, but they do occur, especially if a relative did not inherit property they thought they were entitled to receive. Contesting a will can be very difficult and will only be invalidated if it can be proven that the will was signed under duress, procured by fraud, the testator was incapacitated when the will was created or the will was not signed under the requirements outlined in state law.
If you wish to contest a will you must file papers in the appropriate probate court. There are statutes of limitations for contesting a will which vary by state. You also must be considered an “interested party (beneficiary of the estate or would have been a beneficiary of the estate if not for the existence of the will).
State laws dictate the requirements for probate and can vary significantly from state to state. It may be possible to probate a will on your own, but generally an estate lawyer is consulted.
To initiate the process, the will should be filed in the deceased’s county of residence in the appropriate court. The executor (also known as the personal representative) of the will generally files the will and a request or Petition of Probate. Ask the court if they have a form that is used for this purpose.
Most wills are approved by the court. If approved, the court will issue an order to probate and file the will. Public notice of the proceeding may be given to allow creditors the opportunity to request payment for outstanding debts owed by the deceased.
Certain property may not be included in the probate estate and will not be affected by the will. For instance, some types of property may be distributed as determined by the deceased prior to their death as outlined on a designated beneficiary form such as a 401K account or joint banking account.
The good news is, given technological advances, it is easier than ever to create a will. If the deceased did not take the time to create a will or the will they created does not meet the requirements of their state, this is called dying “intestate.
If you die intestate the state court names an administrator, usually your spouse or an adult child, to handle the case. Unfortunately, without a will, the property is gathered, debts are paid and the remaining assets are distributed according to state laws, which may be quite different from what you would have wished.
Estate lawyers can provide information about wills, trusts, estate planning and other financial issues. Friends, family members or co-workers may be to provide recommendations.
Meet with several estate attorneys either in-person or talk to them on the phone and make sure you clearly understand their payment structure, their level of experience, and whether they are licensed to practice in your state.
Do not be afraid to ask for references and check to see if they have ever been under disciplinary review. Finding the right estate planning lawyer may eliminate costly mistakes and save your loved ones money and time carrying out your wishes after your death.
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