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;
- Bank accounts;
- Retirement accounts;
- 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.