What is a Will?
This is the most natural place to start, what is a will exactly? A will is a legal contract to be executed in accordance with state law that directs the distribution of assets when you die. In additions to distributing assets, a will can also name a guardian for orphaned children.
What is Required for a Will to Be Legal?
There are certain guidelines that must be adhered to when creating a will. Though jurisdictions may have slightly different requirements, the most common requirements are:
- The person must be of legal age.
- The person must be sound of mind. A person suffering from mental illness, such as Alzheimer’s or Dementia is unlikely to make such important decisions rationally.
- A Transfer of Property must be included
- Two witnesses must sign, and most states require that these witnesses are not in the inheritance plan.
- It must be executed with a statement at the end that this is the will of the person, dated and signed before the witnesses.
Ok, you know what a Will is now! How do you start creating a Will?
The very first thing you should do after deciding to create a will is delegate a legal advisor. Having an experienced estate law attorney can help make sure your will is created in a completely valid and legal way. An attorney can make sure your will is set up to stand contesting and other tests of validity that may arise. Further, if you have an abundance of assets you want distributed in your will, an attorney can help keep track of delegating the assets.
After seeking an advisor, you’ll want to then take stock of all of your assets. This may include property, businesses, insurance policies, retirement accounts and more.
Decide What to List on Your Will
After you have created a list of all of your assets, decide which of these assets to include in the will. Certain items will be left via other methods outside of a will, NOLO includes a good list of these types of items. Again, having an attorney through this process will help with clarity on what to include in the will.
Decide Who to List on Your Will
After taking stock of your assets and deciding what to list on your will, the next step is deciding who gets what assets. Maybe certain items like a piece of jewelry or a car have greater sentimental value to one specific person than others–it will be beneficial to name these people on the will directly, rather than require people to remember or attempt to claim assets after the fact. Being very specific right down to the smallest detail will allow your loved ones avoid conflict over different interpretations of the inheritance.
What Goes On A Will?
The following information is standard fare for wills–but the overall rule of thumb is that it’s always best to spell out every last detail whenever there is any chance of confusion.
- Your Name
- Your Spouse’s Name
- Your Child(ren)’s Name(s) — including Step and Foster children.
- A statement invalidating any existing wills, if they exist.
- The Executor (and usually one successor executor)
- Any special powers you give the Executor (for example, Executors often are given the power to mediate any squabbles)
- A list of assets, gifts, and personal property
Instruction for the lineage of your estate
Again, the practice of writing out specific details will make the process less stressful for your loved ones in a time that is otherwise difficult.
What is an Executor?
An executor is, quite simply, the person responsible for executing the instructions given in the will and last testament. Generally the executor will be an estate lawyer, but not this is not necessarily true for every case. For larger estates, it is more important to have a legal professional help guide the process.
Can I Change a Will?
Changing a will is something that pops up fairly often. Circumstances change, and people need to add or remove beneficiaries or assets. It’s natural. So how would one change his will? There are two ways. The first is to simply re-draft the will, renouncing the old will and using the new parameters required. The second way is generally for smaller changes–a separate document called a codicil. The codicil is a legal amendment to the will and should be created with the help of an estate law professional to ensure accuracy.
Contesting a Will
Generally speaking, contesting a will is very difficult. They are designed purposefully this way because the benefactor of the will is not going to be present to defend the will against any challenges. Also, in some states, an “in terrorem” (which means “no contest”) clause can be included when the will is created. The no contest clause forces a beneficiary to choose between the inheritance delegated by the will or being completely disinherited.
There are many reasons one might challenge a will and generally include: accusations of forgery, mental incapacity by the Testator when the will was drafted, fraud, coercion, an obvious mistake or failure to meet jurisdictional requirements.
A will can be found invalid either in part or in full. If the will is voided, the assets are distributed according to the state’s intestacy laws.
Dying without a Will (Intestate)
The term “dying intestate” is the legal term for when one passes without having created a valid will. When an intestate death happens, the laws in that particular state of official residence take precedence. Every state has intestacy laws that have standardized inheritance trees, and delegate guardians for minors and administrators for accounts/properties.
Generally, intestacy rules point to “next of kin” successors, but for complete control of your estate, and your estate’s distribution after your death, you must draw up a will.
There are a number of complexities involved with estate planning, including creation of a will. It is highly recommended to consult with an experienced estate law attorney (lawphx.com estatelawphx.com) and make sure that your family and your property and in good hands.
