A person’s estate refers to all of their property, including but not limited to:
- Personal items;
- Bank accounts;
- Real estate;
- Stocks and securities; and
- Other such assets.
When you die, an estate plan dictates how your property will be managed and distributed. A well-developed estate plan can minimize your loved one’s tax burden, as well as the need for probate court proceedings. Estate planning addresses wills and trusts, as well as other issues such as:
- How you are to receive medical treatment when you become incapacitated;
- Organ donation status;
- Who will make legal and financial decisions on your behalf if you become incapacitated;
- Who will care for your minor children, if any;
- Who will take over your business interests; and
- Your funeral arrangements, especially information regarding any arrangements you made prior to your death, such as prepaid funeral services.
If you do not create an estate plan for yourself, your estate will be distributed according to your state’s intestate succession laws. These laws can result in property distributions that are not aligned with what you wanted, and as such, it is important to create an estate plan for yourself.
What Is A Will?
A will is a specific estate planning document which allows a person to designate the way in which their property will be distributed upon their death. The property that may be disposed of in a will includes both real and personal property.
Generally speaking, in order for a will to be valid in most states, the will must meet each of the following requirements:
- The will must be in writing.
- The will must be signed by the testator;
- Although not generally a requirement, a will should also be dated, as this can reduce confusion regarding which is the correct will if there are multiple wills;
- If the testator is not able to sign, such as if they are unable to use their hands, they may make a mark such as an X, and the witnesses who are signing can attest that the testator did sign it;
- The will must be witnessed by at least two or more competent witnesses who are not interested, meaning that they cannot be named in the will or otherwise have a stake in the will; and
- The testator must have testamentary capacity. Testamentary capacity is generally met if the testator is above the age of 18, or in the military or is legally married, and knows:
- That they are creating a will;
- The effect of the will is to distribute their property upon their death;
- They understand the specific property in which they are distributing; and
- They understand who is receiving the property.
However, the requirements mentioned above can vary depending on the state in which the testator resides, as well as what type of will is being created. An example of this would be how if the will is a holographic will, it generally does not need to be witnessed so long as the will is both written and signed by the testator.
What Should I Consider When I Am Preparing My Will?
When preparing your will, you should have a clear understanding of your overall goals and intentions. In order to reduce the likelihood of will disputes or future legal contests, you should make your will documents as clear as possible.
Some other factors to consider when you are preparing your include:
- Consider Your Entire Estate and All Of Your Assets: You should account for all of your belongings and assets when preparing your final will so that way your property will not be transferred without your knowledge or against your wishes;
- Name and Describe the Property as Clearly as Possible: The property items that are listed in your will should be clearly identifiable, solely from your will descriptions. This will reduce confusion and potential disputes over the items of your will;
- Name the Beneficiaries Clearly: Similarly, you should name beneficiaries as clearly as possible. It is important that you use their names in combination with their relationship to you, as well as to others who are mentioned in the will; and
- Include Specific Terms and Clauses: You should include additional clauses in your will as needed. An example of this would be terms which address modifying the will, or canceling a will if another will must be made.
The overall intention is to be as clear and precise as possible, in order to avoid potential legal disputes or conflicts regarding the way that your property is to be distributed. An example of this would be how if a specific property item is described in an ambiguous way in a will document, the beneficiaries may dispute over that item because they cannot tell exactly which property is being referred to. This issue can be prevented by clear, unambiguous descriptions of property in the will.
What Are Some Legal Terms I Should Know?
Common will terms can include:
- Testator: The person who is making or creating the will;
- Beneficiary: The people who are to receive distributions from the will;
- Capacity: The ability to make a will;
- Executor: The person appointed by the testator to handle will issues after their death;
- Witnesses: People who are present during the formal signing of the will. To reiterate, most states require that at least two non-interested witnesses be present; and
- Decedent: The person who died, which in this case would also be the person who created the will. This term can be used interchangeably with “testator”.
Are There Different Types Of Wills?
As was previously mentioned, there are different types of wills. The most common will classifications include:
- Self-Proving Wills: These are wills that have been properly witnessed and signed according to all of the formalities required by a specific state’s law. As such, this is the most common type of will;
- Holographic Wills: These are wills that are handwritten without the presence of formal witnesses. It is important to note that very few states recognize these types of wills, and when they do, it is generally only under limited and specific circumstances; and
- Oral Wills: These wills are unwritten dispositions of property, in which the testator orally communicates their wishes. Oral wills are only recognized as valid in a few states, and generally only in especially compelling situations.
What Are Some Of The Most Common Will Disputes?
It is common for disputes associated with a testator’s will to arise. An example of this would be how there may be conflict associated with what a certain term in a will means. Another example would be which property a word refers to. Such circumstances may require rewording the terms of the will, or the will may be replaced with an entirely new will.
Some of the most common will disputes include:
- Disputes associated with which beneficiaries are mentioned;
- Disputes regarding the way in which the property is to be distributed amongst the beneficiaries;
- Conflicts involving the named will executor;
- Conflicts regarding a specific property item; and
- Legal conflicts regarding the way the will is written, such as if the will is not written in a way that fulfills all state requirements.
Will disputes generally occur after the testator has died, which can be problematic, as it will then become more difficult to determine what the testator’s actual intentions were. Under these circumstances, the will’s executor may be required to make decisions on behalf of the decedent’s estate.
Do I Need An Attorney For Help Preparing A Will?
If you wish to prepare a will, you should consult with an experienced and local will lawyer. An area attorney will be best suited to help you prepare a legally valid will according to your state’s specific requirements. An attorney will also be able to represent you in court, as needed, should any issues arise.