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Everything You Need to Know About Wills

A will is a legal document that determines what happens to your property and assets when you die. In many cases, it names an executor to carry out your wishes after you pass away, too. If you don’t have a will in place, the state will decide who receives your possessions and how your estate should be distributed to family members or others—and this might not be what you want. Here’s everything you need to know about wills.

Why Having A Will Is Important

It’s a common misconception that wills are only for the very wealthy or those with complex assets. However, there are many good reasons to have a will.

  • With a will, you can be very specific about who will receive your assets after your death. If you died without a will, state law would determine where your assets will go. Distribution may or may not follow your will, as many people try to avoid probate and the need for a will by giving all of their property to their children in joint ownership.

    That’s usually not the issue though; usually, people worry unnecessarily about making sure all their joint accounts remain equally distributed among their children. These efforts can be defeated by a long-term illness of the parent or the death of a child. A will can be a simpler way to implement one’s desires on how property should be transferred after death.
  • Estates can be processed much more quickly and efficiently with a will in place. Without a will, the probate process could be more drawn out and may cost more. By declaring clearly your final wishes, there will be little dispute about who should receive what when the time comes.
  • Your will determines who will take over and distribute your assets according to your will. They are your executor, executrix, or personal representative, depending on your state’s law.

    If you do not make a will designating who should be your beneficiary, the court may do it for you. The court will most likely assign the position to the first person to ask for it, whether that is a sibling, child, spouse, etc.
  • When estates are large, having a well-thought-out will can be a good way to lower estate taxes.
  • You can designate who will take your place as guardian of your minor children if you and their other parent both pass away.

To be certain that your wishes will be carried out, make a testamentary will. This is the most common type of will. preparing the document and signing it in the presence of witnesses is arguably the best way to guarantee that family members or business associates won’t be able to challenge your wishes after you die. You can write one yourself, but if you would like it to be accurately worded and done in compliance with your state’s laws, then you may wish to have it done by a trusts and estates attorney.

From extremely simple to extremely elaborate wills, it depends on the needs and goals of the person writing the will. A will may be used primarily to name a guardian to care for their minor children, while other people use a will as just one component of a broader estate plan that may include a trust, a living will, and a power of attorney. It is possible to reduce taxes, distribute property, and avoid disagreements among loved ones by making a will.

You may benefit from a will if you have children who are minors, a few prized possessions (even if their value is mostly sentimental) or have promised an item to family members.

If you don’t make a will, your assets will be divided according to state law. This is accomplished by going through a court-supervised probate process. A probate process that is complicated and lengthy can be worsened if you do not have a will or estate plan.

The Requirements For A Will

The laws governing wills differ from state to state. Generally, the testator must be of sound mind, meaning he or she must be able to comprehend the document and all its implications fully. Wills must be written. Although some states allow handwriting as a will, it is better and more enforceable if the will is typed or printed.

In order for your will to be legally valid, you must sign it for it to be legally valid, and in case you’re physically unable to do so, you can direct another person to sign the will in the presence of witnesses, and then the signature must be witnessed and/or notarized. Requirements vary by state, so verify that you’ve met the legal standards or speak to a local estate planning attorney.

You can amend or revoke your will at any time, for any reason, until you make a new one.

Types of Wills

There are several types of wills, each with its own unique benefits. The most common type of will is a testamentary will, which is a document that outlines your wishes for your estate after you die. A living will, on the other hand, is a document that outlines your wishes for medical care if you become incapacitated. Other types of wills include the following.

Mutual Wills

When one party dies, the other party remains bound by the terms of the will after the death of the first party. This type of will is commonly executed by a married or committed couple.

In order to avoid a case of conflict between the spouse and children of your loved one, a mutual will can be drafted. Legal advice should be sought before establishing this type of contract. It’s easy to confuse the two terms, but they are not the same.

Simple Will

A simple will is most commonly associated with the word will. It allows you to designate your beneficiaries and a guardian for any minor children. And, writing a simple will can be simple. Online forms that allow you to provide some information may work if you’re just looking for a starting point, but they are not legal forms and may not be good enough if you want to take things to the next level.

Testamentary Trust Will

A testamentary trust gives a small number of assets in your will to your beneficiaries to inherit for themselves and appoints a trustee to take care of those assets until they come of age or are ready to inherit on their own. By creating this type of will, you can put assets in a trust, with any condition for the inheritance which may be graduated depending on age or other conditions.

Living Will

A living will has nothing to do with passing your property onto other people after you die. Instead, it is a document that enables you to choose the treatments you would like if you are unable to make that decision yourself. Some state laws require a combination of a living will and a healthcare power of attorney or proxy in an advance healthcare directive. It is therefore very important to learn your state’s laws on this issue.

Note that it is possible to have more than one type of will at the same time and these wills may be perfectly valid. For example, a living will and a simple will can exist side by side because they serve very different purposes.

Do You Need A Lawyer To Write A Will?

You don’t have to have a lawyer draft a will but it can be helpful in some cases. Depending on the particulars of your situation and your ultimate aim for the will, a lawyer may or may not be required.

If you don’t have a complicated financial or family life, a simple will should suffice. People often use pre-made software or forms when creating a will, but the use of an online legal document creator simplifies the process and can produce a will in under an hour.

Many wills entail complex matters, so a lawyer may help to address those issues. For example, if you have a special needs child, you may find that a living trust and pour-over will help your case. Attorneys may be contacted if there is an opportunity to contest a will; if you intend to exclude a spouse or child from your will, make sure your intentions are clearly laid out and executed.

Wills Vs. Trusts

Even if you have a trust, it may be wise to consider preparing a will, because a will can help to reduce estate taxes. Since most trusts deal only with specific assets, such as life insurance or real estate, rather than the totality of your holdings, a will makes sense.

Also, you may consider setting up a trust to provide for a beneficiary who is underage. Once the beneficiary is old enough to manage their assets, the trust will pass to them.

The bulk of your assets can be put into a revocable living trust, but if you have a pour-over will, you still need it. You can name a guardian for your children with a pour-over will and your assets will be put into the trust even if you do not retitle some of them before you die.

If assets are not retitled in the trust’s name, they are subject to probate. If you haven’t specified in a will who should receive those assets, a court may decide to distribute them to heirs you might not have chosen.

How To Write And Validate A Will

A valid will does not need to be prepared by professionals. If you are comfortable preparing your own, several software tools are available to you, as are DIY websites. Once you have drafted the document, it needs to be witnessed, usually by two adults who know you well.

A witness can be any person, but choosing a disinterested witness who will not be a beneficiary and does not have a stake in your decisions is best. Some states require two or more witnesses. An attorney should not be a witness if they prepared the will.

A will may also need to be notarized, so check the requirements in your state. Even if it isn’t necessary, it might be worth having your witnesses complete a self-proving affidavit. Since the document was signed in the presence of a notary, this may aid in the probate process, reducing the likelihood of witnesses having to validate their signatures and the will’s authenticity.

Final Remarks: Why You May Consider Writing A Will

A will is a legal document that outlines your wishes for how your property and possessions will be distributed after you die. People typically create wills to avoid disputes among family members and to ensure that their final wishes are carried out. Even if you don’t have many assets, a will can be helpful in ensuring that your belongings go to the people or causes you care about most. If you die without a will, state laws will determine how your property is distributed, which may not be in line with your wishes. So, if you want to have control over what happens to your belongings after you die, drafting a will is a good idea. You may want to consult with an estate planning lawyer about drafting and validating a will, if you’re uncomfortable with the process.

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Legal Favor

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Sources

  • American Bar Association. Introduction to Wills. Americanbar.org. Retrieved July 6, 2022, from https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/an_introduction_to_wills/
  • American Bar Association. Estate Planning Info & FAQs. Americanbar.org. Retrieved July 6, 2022, from https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/
  • NOLO. Wills. www.nolo.com. Retrieved July 6, 2022, from https://www.nolo.com/legal-encyclopedia/wills