How to Prepare for a Consultation for Drafting Wills and Trusts

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 How Can I Prepare for a Consultation for Drafting Wills and Trusts?

It is important to take time to prepare for a consultation with an estate lawyer. Drafting a will may be one of the most important things an individual does during their lifetime. They will be able to pass along their property how they wish and, in some cases, make sure their children are taken care of when they pass.

The first step in preparation for the consultation is to take inventory of the property an individual has. This may include items such as:

  • A home;
  • A vehicle;
  • Land;
  • Cash;
  • Bank accounts;
  • Retirement accounts;
  • Stocks;
  • Personal items; and/or
  • Family heirlooms.

It may seem slightly absurd to think an individual must outline who will receive each piece of their property. But, the reality is, this process will save an individual’s loved ones time and prevent family feuds. It is important to remember that the property belongs to the individual drafting the will. They are free to make whatever choices they want regarding their belongings.

In case an individual is not familiar with the exact meanings of wills and trust, a brief review will follow. Most people have heard of a will but may not be aware of the specific requirements.

A will is a legal document that outlines the wishes of an individual, known as a testator, for the distribution of their property after they pass away. A will contains an executor, who is an individual appointed by the testator to oversee the disposition of their property.

A self-proving will is the most common type of will. This will is one that has been witnessed and signed in accordance with the laws of the state where the testator resides. The requirements will vary by state. As an example, in New York, the following requirements must be met:

  • The testator must be at least 18 years of age;
  • The testator must be of sound mind at the time of the will signing;
  • The testator must have the intent to make a will;
  • The testator must sign and date the will. In some cases, another individual may sign and date the will if the testator is in that individual’s presence and directs them to do so;
  • The signature must be located at the end of the will;
  • The testator must declare that the will is their will and sign it in the presence of two witnesses, or the testator must acknowledge their signature to the witnesses;
  • Some states provided that the two witnesses must sign the will within 30 days. The 30-days begin when the first witness signs.

Because the requirements vary in every state, it is imperative to have an attorney assisting with the will drafting. This will ensure all the requirements are met for a legally valid will.

A second type of will is known as a holographic will. A holographic will is written by the testator without the presence of witnesses. This type of will is recognized as valid in some states so long as it is signed and dated by the testator. The majority of states that recognize this type of will require verification by two or more individuals that the will is in the testator’s handwriting.

A third type of will is an oral will. In an oral will, the testator orally communicates the terms of a will to another individual. This is not recognized in most states as a valid will. There are, however, exceptions, such as when a deployed military member makes an oral will.

A will often includes directions for minor children as well as property. A guardian can be appointed for any children who are minors.

A will outlines what beneficiaries receive what property. In some cases, there may be property that is not specifically named. The will can provide instructions for the disposal of that type of property.

A trust is a legal instrument created by an individual, known as a settlor, who owns property. A trustee holds the legal title to the property in the trust. The trustee is under a legal obligation to invest, manage, and safeguard the trust assets. The trust assets are distributed to named individuals, or beneficiaries.

A trust creation requires the following:

  • A written declaration by the settlor of their intent to create a trust;
  • A signing over from the settlor to the trustee of any titles, deeds, and/or other proofs of ownership of the settlor’s property;
  • Property that funds the trust; and
  • The naming of one or more beneficiaries.

There are different types of trusts and individuals can create. These include:

  • A testamentary trust, which is created by including a provision in the will, directing certain assets be disposed of in trust;
  • A living trust, which is created while the settlor is alive.
  • An irrevocable trust, in which the terms cannot be changed or revoked; and
  • A revocable trust, which can be terminated by the settlor for any reason until their death.

There are also types of trusts that can be created for a specific purpose. For example, a spendthrift trust can be created that prevents the beneficiary’s access until they reach 18 years of age. Once the beneficiary reaches the required age, they are entitled to the proceeds.

It is important for an individual to be familiar with what may be included in a will and/or a trust prior to a meeting with their attorney. This will allow them to at least make some decisions beforehand and not be surprised by anything they are required to decide.

What Documentation and Questions Should I Prepare Before Meeting with My Wills, Trusts, and Estates Lawyer?

It is important to gather any relevant documents prior to a meeting with a will, trusts, and estates lawyer. An individual should bring any and all documentation related to any properties and/or personal items they want named in their will. In some cases, an item will require a specific description, which may be found in documents related to the item.

For example, if an individual wishes to pass a piece of property on to their children, a description of that property is required. An address is not usually sufficient. There is a description found on property deeds that specifies exactly where a parcel is located. This type of specific description prevents arguments of ambiguity.

What Makes a Will Draft Strong?

A strong will is drafted by an attorney and follows all requirements of the testator’s state law. It specifically names beneficiaries and what exactly property they are to receive. It outlines what to do with any leftover property.

As a quick review, the basic components of a strong will include:

  • A testator with the sufficient mental capacity to form the will;
  • The appointment of an executor, who will handle the matters of the estate;
  • A provision and/or statement in the will that provides that the document is in fact their will;
  • An attestation, or having the will signed by at least 2 witnesses;
  • The testator’s signature and the date the will was signed;
  • Other provisions, including those dealing with minor children and/or those describing specific items of property.

What are Some Dos and Don’ts for Drafting Wills and Trusts?

Some “do’s” for drafting wills and trusts include:

  • Do: Hire an attorney to draft your will and/or trust. Will and trust drafting can be complex and you want to ensure your wishes are carried out.
  • Do: Be as specific as possible with your beneficiaries. Make sure to name them by full name and provide a specific description of the property you want them to receive.
  • Do: Be proud of yourself for doing something good for your loved ones. You will save them time and anguish trying to decide what you would want done with your property.

Some “don’ts” for drafting wills and trusts include:

  • Don’t: Write your holographic will on a napkin. Technically, yes, it will suffice, but it is certainly not recommended.
  • Don’t: Leave anyone out you want to receive something. Remember, if it is not specifically written down, no one will be aware you wanted it done.
  • Don’t: Worry about what the beneficiaries will think. Many times, testators are concerned about fairness and if someone will be disappointed with their inheritance. Be as fair as you can and trust your beneficiaries will be grateful.

When Do I Absolutely Need a Lawyer for Wills, Trusts, and Estates Issues?

It is important to have the assistance of an estate lawyer for any will, trusts, and estate issues. Will drafting can be a very technical exercise and the requirements vary by state. It is important to have an attorney draft a will and/or a trust to ensure that all the requirements are met and the individual’s property will be distributed as they wish.


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