A will is a type of communication that states how a person wants their property to be distributed when they pass away. The person creating the will is called the “testator”, while the persons receiving the property are called “beneficiaries”. Wills can either be written or orally communicated.
State laws may vary with regard to what is considered a valid will. There are three basic types of wills that can be recognized by states:
- Self-Proving Will: This type of will is one that has been properly witnessed and signed according to all formalities required by state law;
- Holographic Will: This type of will is handwritten without the presence of witnesses. Not all states recognize these types of wills, and usually only in limited, specific circumstances; and
- Oral Will: This type of will is where the individual orally communicates his or her wishes. Oral wills are only recognized in a few states and usually only in certain situations (such as when the person is critically ill and there was no time to create a formal document).
What are the Requirements for a Valid Will?
Specific will requirements depend on the state where the testator lives. The requirements for a valid self-proving will usually include:
- The testator must be the legal age of majority (either 18 or 21, depending on your state), and must be of sound mind at the time the will is created;
- The testator must sign and date the will;
- Witnesses must be present. Most likely, a witness cannot also be interested in the will (that is, the witness cannot receive anything in the will). Witnesses also must be competent and mentally sound at the time;
- Usually, a will does not need to be notarized; and
- The document must clearly state that it is the person’s will.
Is There any Kind of Property I Can’t Leave to Beneficiaries in My Will?
There are certain types of property that legally cannot be included in a person’s will. Depending on state laws, these may include:
- Any Property that is Co-Owned with Someone Else Through Joint-Tenancy: Married couples typically own the marital home in joint tenancy. This means that when one spouse dies, the other spouse automatically owns the entire house. It will be necessary to change the deed on the house to reflect the death of one of the joint tenants;
- Funds From a Bank Account that are Classified as “Payable On Death”: You can change beneficiaries by filling out a form through the bank, but not through your will;
- Property being held in a living trust.
- Funds From Any Type of Employee Retirement Plan (IRA, 401(k), etc.): If you want to change the name of the person who will receive the money, contact the administrator of the retirement plan account;
- Funds for a life insurance policy after a beneficiary is already named;
- Any investment securities such as stocks, bonds, etc. that are to be transferred to a beneficiary upon your death. If you wish to change the beneficiary, you will need to contact your brokerage firm or agent;
- Community Property Laws: These also affect what you can and cannot leave in a will. For instance, your spouse is entitled to a share of the community property.
Are There any Other Items I Can’t Include in My Will?
The main purpose of a will is simply to state what items you want to leave to which beneficiaries. Anything going beyond that point is not legally enforceable in a will, including:
- Funeral Instructions and/or Final Arrangements: Most of your relatives will not know where to find your will, or may not even know that you have a will. So, you should leave a separate document that explains your final wishes. Let the executor of your estate know about it and where it is being kept, including any information about burial plots or payments already made for funeral arrangements.
- Providing Care for Beneficiaries Who Have Special Needs: This should be handled in a separate trust, called a special needs trust.
- Putting Conditions on Items You are Putting Up for Inheritance: You cannot place conditions on a beneficiary’s receipt of a gift based on their marital status or religion. However, you may be able to put less drastic conditions on a gift (such as giving the item to a beneficiary as long as they do not drink or smoke);
- Providing Funds for an Illegal Purpose: Obviously, if it would be illegal to provide funds for a certain purpose while you are alive, it would not be any more legal once you have passed away.
What if I Have a Will Property Dispute?
Will property disputes can be quite common. For instance, a beneficiary might have a dispute over which item or items they are to receive. It is also common for there to be disputes over who is named in a will document, and how the estate is to be managed upon death.
Will disputes typically need the assistance of a lawyer, who can help sort out the conflicts according to the laws in your state. Will disputes can largely be avoided by having an attorney help with the drafting of the will. Wills, trusts, and estates lawyers are better equipped than the average person to foresee different legal conflicts and potential issues with a will document.
Do I Need an Attorney for Help with My Will?
The legal formalities and tax implications of a will document can be very complex and confusing. If you need assistance in making a will, you should contact an attorney who has experience in estate planning. Your wills, trusts, and estates attorney will be able to listen to your goals for your will, and help you develop a will document to meet those goals.