Friday, April 08, 2011

Understanding Your Last Will and Testament

Although recent news surrounding the estate tax—both its repeal and its reinstatement—has died down, many people are still talking about their estate plans.  Most people recognize that now is the time to create their estate plan, or to review and update their existing plan if they have one. This means that many people are asking questions about the primary document in just about any estate plan: the Last Will and Testament.

What is a Will?

A will is, for many people, the cornerstone of their estate plan.  In fact, if you only create one estate planning document (which we don’t recommend) that document is probably a will.  A will is the document which details your wishes about how and to whom your property will be distributed upon your death.  A will can list your property in great detail, or it can make a statement about “all my legal property” in general.  Your will names an executor, the person who will carry out your wishes as detailed in the document.  And if you have minor children your will can name guardians, the adults you choose to care for your children in your absence.

What is required to make a Will?

At its heart a will is very simple.  Requirements will differ depending on your state of residence, but there are some basic requirements that will be the same across the board:

·         A will must be created by a testator who is of legal age, who is proven to be of sound mind and judgment, and who is under no duress.

·         A will should revoke all previous wills and codicils.

·         A will should be signed and dated.

·         A will generally needs the signatures of witnesses, and in some states must also be notarized.

It is important to note that there is no requirement that a will must be created by or with an attorney; however, homemade wills have been frequently found to be invalid, or have been contested by disgruntled heirs or potential heirs, so having the help and advice of an attorney is highly recommended.

What happens if you don’t have a Will?

 If you don’t have a will your property will be distributed according to the intestacy laws of your state.  Property will generally be inherited by a spouse, or equally by a spouse and children.  If there are no spouse or children then property will generally go to living parents or siblings, then to nieces, nephews, or other living relatives who can be found. The state will choose an executor for your estate, as well as guardians for any minor children you have. Unfortunately, the people chosen by the state to serve in these roles may not be the people you would have chosen. Additionally, the probate process is likely to be even longer than usual as the extent of your estate, as well as any outside claims to it, are investigated.

Luckily, there is very little reason for anyone to die without a will. Although wills can be designed to be as comprehensive and intricate as you like, they are at heart very simple documents which can provide an incredible peace of mind for you and your family.  Contact our office—or another attorney you trust—to help guide you through the process of creating your own last will and testament.