Here's what we found for wills

3 articles found

  • Last Will and Testament Basic Information

    Last Will & Testament Basic Information When you feel it’s time to start planning your estate, you should start by creating a Last Will & Testament. This legally-binding document is vital to ensure your final wishes concerning your estate and funeral arrangements are honored.  What you need to do when creating a will: Learn the basic parts of a will Understand the process Select an executor Choose a legal guardian for children Assign property and assets to beneficiaries  Anatomy of a Will A legally-binding Last Will and Testament includes the following: Declaration Executor Guardian(s) Beneficiaries Bequests Funeral Arrangements Declaration The declaration section states your reason for creating a will. This section also includes basic identifying details and a statement providing legal proof that this will was made in sound mind.  Bequests The bequests section is where you discuss the estate and which items or assets are granted to each beneficiary.  Executor An executor is the person responsible for carrying out the instructions of the will — distributing assets, taking care of any debts against the estate, and working with the probate court throughout the process.  Because the executor is responsible for handling sensitive personal and financial information, the appointed person should be someone you trust completely.  Make choosing your executor one of your first actions when you create a will. If you do not specify an executor, the Probate Court will make that decision for you after you pass.  Guardians We all hope that our children will be legal adults when it’s our time to pass, but wills are all about planning for the unexpected. Be prepared by making sure that your children will be taken care of. Choosing a legal guardian is not a light decision, especially since this person will also be in charge of whatever part of your estate that you leave to your children.  Beneficiaries and Assets The distribution of your estate is the main thing most people think about regarding a Last Will and Testament. You can name any person or organization as a beneficiary in your will.  You can divide and bequeath your estate in any way you choose. You can give specific items to beneficiaries, or leave a percentage of assets to different loved ones. If you choose to divide real property among multiple beneficiaries, you may also need to provide the executor with instructions on how to carry out those wishes.  Catch-All Clause Consider including a residuary clause in your will to catch any assets and items not explicitly distributed to your beneficiaries. This simple clause acts like a net to ensure that nothing is overlooked and may help deter possible arguments and legal red tape.  The Legal Requirements Although your Last Will and Testament is customized for your wishes, you must still adhere to a few legal requirements: You must be a legal adult (at least 18 years old) and of sound mind  You must sign the will in front of at least two witnesses Your will may not be considered legal if there is any proof that you signed the document under duress or by undue influence. “Undue influence” is being manipulated or pushed into making a decision without considering the consequences or without the freedom to refuse the demands of the other party. The document may also be considered invalid if there is any evidence that you were not of sound mind at the time you signed the will.  You may want to include a Self-Proving Affidavit with your will. This is a legally binding and notarized document that verifies all signatures in the will for the Probate Court.  The Process After your death, your executor or attorney files your will with a Probate Court. The court then officially appoints your executor, who can begin handling their responsibilities regarding the estate. If the will does not include a self-proving affidavit, the witnesses must verify their signatures before the court.  Estate Planning Q&A Do I need a will?  Yes. Everyone should have a will. Even if you don’t think you have many assets to disperse, a will can also include your funeral instructions and the appointment of a legal guardian for your children. If you do not create a will before you pass, a Probate Court will take control of your estate and make its own decisions.  Do I need an attorney to prepare my will? An attorney is not legally required to create a Last Will and Testament. If all you want to do is bequeath a few assets to specific people and ensure your children are taken care of, you probably won’t need a lawyer.  However, hiring an attorney might be a good idea for more complex cases. If you have a large estate that includes real property and assets, you may want to seek legal counsel to ensure that your wishes are clearly explained. An attorney can also help navigate the minefield of inheritance tax laws. The US  government does not tax an inheritance until it reaches a significant amount, which periodically changes, but is always in the millions. What is an estate plan? An estate plan includes several critical legal documents — Last Will and Testament, Living Will, Power of Attorney, Advance Directive, and Living Trust. An estate plan protects your interests and ensures that your instructions are followed both before and after death. 

  • Legal Requirements for a Will

    Legal Requirements for a Will When you create a Last Will and Testament, be aware that there are specific legal requirements you must include in your document for it to be legally valid. These requirements vary from state to state, but regardless of where you live in the US, include: Minimum Age Mental Capacity of the Testator (creator of the will) Intent of the Testator Signatures Witnesses  Minimum Age Requirement In most states, the minimum age for a person to create a legally binding Last Will and Testament is 18 years old. However, there are a few exceptions. In Louisiana, the minimum age is 16 years, while in Georgia, it’s only 14.  Some states may make exemptions for emancipated minors, but others, including Arkansas and California, still require the testator to be at least 18 years old. The probate court may make exceptions for minors under special circumstances, such as if the will concerns a sizable estate.  Intent of the Testator For your Last Will and Testament to be valid, the probate court requires you to state your intent through specific words and phrases. The phrase “This is the last will and testament of [your name]” must be clearly stated at the beginning of the document to legally indicate that it is a will. Without this declaration, your will may not be accepted by the court. Capacity of the Testator Another mandatory legal requirement for any Last Will and Testament, regardless of your home state, is that you have a sound mental state at the time your will is created and signed. Like the intention requirement, this rule is set in place by law to protect you against manipulation or fraud.  The common term is “sound mind.” This simply means that you were fully aware of your actions at the time that you signed your will and were not coerced in any way by another party. If you have been diagnosed with a health issue that casts doubt on your mental capacity, you can include a signed statement from a doctor attesting to your sound mental state when you signed your will.  Required Signatures  In addition to stating your intention and soundness of mind, your will is not considered legally binding until you sign the document. You must also have two witnesses verify your signature and sign the will.  Types of Witnesses The Probate Court requires that two witnesses sign your Last Will and Testament. Both parties must be legal adults over 18 years old. The witnesses must also be willing to verify the testator’s signature and their own signatures before the court, if necessary.   Adding a Self-Proving Affidavit to your will validates all signatures and may help your loved ones avoid unnecessary issues with the will.  Most states require you to use “disinterested” witnesses — i.e., parties who do not benefit from your will. Massachusetts and California allow an “interested” witness to sign a will, but only with two additional disinterested witness signatures. To avoid issues during the probate process, secure witnesses who are not beneficiaries in your will.  Invalid Wills If your will does not meet the legal requirements set forth by the probate court for any reason, it will be considered invalid and set aside. The court may then use a previously signed will to settle your estate. If another will cannot be found or does not exist, your estate will be transferred to your closest relatives.  To avoid complications with your estate and to ensure that all of your final instructions are followed precisely, make sure that your Last Will and Testament adheres to all legal requirements.  Other Types of Wills Most wills are printed and signed, but some states allow other options: A holographic will, sadly, does not involve holograms. It is a will written by hand and signed by the testator. This type of will does not require witnesses, but two or more parties may be called in to verify the handwriting of the testator. An oral will is not generally accepted in most states, except under very limited circumstances. An oral will is similar to a deathbed confession, and the presence of an imminent threat of danger is required. Video wills, despite being commonly depicted in movies and TV, are usually not considered legally valid. If you want to leave a video message to your loved ones after you depart, make sure you first create a legally-binding document, signed and verified by witnesses, before you hit record. 

  • The Married Will

    The Married Will Changing your marital status from single to married has a significant impact on your life in many ways, including how you draft your Last Will and Testament. If you have already written a will as a single individual, you should be aware of the changes that happen after saying "I do." While you still have some control over your estate and how you wish it to be distributed after your death, some state laws make provisions for the surviving spouse, regardless of what it says in the passing spouse's will. Many states require the spouse to be the beneficiary of certain financial accounts including 401k accounts, pensions, and some IRAs.  Even if you already plan for your spouse to be your primary beneficiary, you should still be aware of how the law sees your estate.  Community Property or Common Law The specific rights that your spouse may have regarding inheritance and your estate have a lot to do with where you live. Whether you live in a community property or common law state has the most significant effect. Community Property States A community property state views both spouses as equal owners of any assets and property gained during the marriage. Assets you acquired before marriage are considered solely yours, but if you open a financial account or purpose any property after getting married, state laws consider your spouse as an equal owner.  Community Property States include: Arizona California Idaho Louisiana Nevada New Mexico Texas Washington Wisconsin Common Law States The other 41 states in the US are common law states. Common law states do not automatically consider assets gained during marriage as being owned by both spouses. One spouse can purchase property solely in their name without including the other.  Most people probably do not consider community property laws outside of marriage or divorce, but these laws are also important to know when working out your estate plan. Divorce and Your Will In most states, a divorce legally severs any rights your former spouse had to your estate after your death. Even in community property states, legally dissolving the marriage also removes the spouse's inheritance rights.  If you get divorced, it's still a good idea to update your Last Will & Testament as soon as possible. Depending on the extent of changes you need to make, you may be able to simply add a codicil to change your beneficiary without rewriting the entire document.  Non-Citizen Spouses and Wills If your spouse is not a US citizen, they can still be your beneficiary and receive assets from your estate. Unfortunately, non-citizens are not exempt from paying the Federal Estate & Gift Tax — a tax applied to inherited assets worth more than $5.45 million. This tax is not applied to gifts between spouses who are both US citizens.  The Joint Will If you have not yet created a "married will," you and your spouse might consider a joint will as an alternative to two separate documents. There are a few pros and cons to this idea, but it ultimately comes down to your preference.  The biggest joint will con is that the document can quickly become complicated and lengthy. Additionally, the joint Last Will & Testament may not allow each person to properly explain their final instructions and other wishes.  The pro side of a joint will is that it simplifies an already lengthy process, especially if both spouses agree on how the estate should be divided.