When planning the execution of a legal document for the disbursement of assets after you die, your fee to consult a competent attorney, accountant, or other trusted professional will be money well spent. This article is intended to provide a broad overview of the subject so you can be more knowledgeable in preparing your own will, exploring other options, and better prepared if you decide to meet with professional advisors.
A will is a document that outlines the following:
What one wants to happen to their property when they die.
How they want it distributed.
Which persons they want to inherit the property.
Preparing a Legally Valid Will
People can avoid having their probate estate pass on to others via individual state statues. It provides for distribution of the estate in the case of no existing will. It can also cut down on the cost of litigation. Distribution of an estate in the absence of a will is very complex depending, in part, whether there are surviving relatives. Visit What is a will for more information!
To ensure that a will is legally valid, the person preparing the will must follow various formalities and requirements based on individual state laws. There four main criteria are:
Legal Capacity: In most states the age is 18 years of age.
Testamentary Capacity: This basically means that the person must understand that the document they are creating is a will. A person being heavily medicated or mentally disabled at the time they prepared the will can nullify the legality. They must also have an understanding of what property they own and are including in the will and understand who their heirs are.
Testamentary Intent: This means the person preparing the will intends for the document to be their will. For example, if someone writes a letter to a relative asking them to prepare a will, that letter would not meet this requirement because the letter itself was not intended to be a will, and were only instructions.
Specific Formalities: This refers to the laws of the state depending on the type of will, for example, handwritten, witnessed or verbal.
Getting Started on Making a Will
Make a list of the property you own and want included in your will. Certain types of property such as joint tenancy held with a person such as a spouse cannot be distributed to someone else in your will. You cannot include property that has been transferred to a living trust. Nor, can you include benefits from a life insurance policy, stocks and bonds or pensions that include a previously named beneficiary.
Name the person or persons you want to inherit your property. The will should include alternate beneficiaries in the event those chosen do not survive you.
Choose an Executor. A legal will must include a named person who will serve as an executor, one who will carry out the terms of the will.
Guardianship for minor children. Name an alternative adult you want to raise your children in the event the surviving parent dies or is unable to do so.
Select a person to manage your childrens property. Most parents do not leave money or property directly to their children. Instead, they leave everything to their spouse, with the understanding that the survivor will care for the children. In the will their children are named as alternate beneficiaries. In the case of a single parent, however, they leave money and property directly to their children. In either case, an adult should be named to manage whatever property the children may inherit, in case they receive it while they’re still too young to manage it themselves.
Signing the will. Laws vary from state to state, but most wills require your signature to be witnessed by two people. Self-providing affidavits signed by you without witnesses require your signature to be notarized. Make sure to inform relatives or the person you named as your executor where your will is safely kept.