Drafting Wills and Trusts
What is a Will?
A will is a written or oral communication by a person stating how they want their property disposed of at death.
Different Types of Wills
There are several different types of wills one can use to dispose of his or her estate:
- Self-proving will: A will that has been witnessed and signed with all of the formalities required by state law. This is the most common will.
- Holographic will: A will that is handwritten without the presence of witnesses. Very few states recognize these types of wills, and only in limited, specific circumstances.
- Oral will: This type of will is an unwritten disposition of property, whereby the individual orally communicates his or her wishes. Oral wills are only recognized in a few states and usually only in compelling situations.
Requirements for a Will
There are several requirements for a will:
- Be of sound mind: This means that you must:
- Be at least 18 years old or an emancipated minor
- Know what a will is
- Know that you are making a will
- Understand your relationship between yourself and the people who care for you (i.e. immediate family members, including spouse and family).
- Expressly state that this document is your will
- Sign and date the will
- Signed ("attested") by at least two or three witnesses: The number of required witnesses depends on state law. In addition, most states require that the witnesses be unrelated to you.
- Have one substantive provision that:
- Appoints a guardian for any minor children
- Lists who inherits specific items
- States what happens to remaining property not specifically mentioned in the will
- Appoint an executor
- Responsible for supervising the distribution of property
- Makes sure that all your debts and taxes are paid
What is a Trust?
A trust is a legal property interest held by one person (trustee) for the benefit of another (beneficiary).
Different Types of Trusts
There are several different types of trusts one can create:
- Living trust: A trust that is created while you are alive. A living trust allows the trustee and beneficiary to avoid the probate process.
- Testamentary trust: A trust established through a will. A testamentary trust generally must go through probate.
- Revocable trust: A trust that can be terminated at any time by the grantor for any reason.
- Irrevocable trust: A trust that cannot be changed or terminated for any reason.
Requirements for a Trust
Creating a trust is a relatively simple process. All that you must do is fill out a:
- Valid Declaration of Trust form
- Sign over the required deeds for property such as homes and automobiles that will be included in the trust
Advantages of a Trust
- Property in a living trust does not go through probate
- The trust document is never made public like a will
- You can name alternative beneficiaries to inherit property if a primary beneficiary dies before you do
- Allows others to handle your assets when you are not able to
Do I Need an Attorney to Draft a Will or Trust?
If you choose to create a will or trust, consulting with an attorney experienced in estate planning is always a wise thing to do. The potential tax implications and legal formalities of will and trust drafting make a lawyer's counsel indispensable. A lawyer can explain all your options and help you understand what types of wills or trusts are right for you and your family.
Consult a Lawyer - Present Your Case Now!
Last Modified: 03-14-2013 02:15 PM PDT