The Ultimate Guide to Creating a Will

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The Ultimate Guide to Creating a Will

A will is a legal document that allows you to determine who receives the property in your estate. When creating a will, it’s important to carefully follow the legal formalities so that your property will be distributed according to your wishes after your death.

The laws governing wills vary from state to state so it is important to consult an estate planning attorney to guide you through the process.

What Is a Will?

A will is a legally binding document that determines how the testator’s estate will be distributed after death. The person named in the will who carries out the wishes of the testator is called the executor.

If you have minor children, a will can also serve to declare whom you wish to be the guardian of your children in the event of your death. This is an important element of the will, as if both parents pass away with minor children, the state court and social services will appoint someone to raise your children.

Different Types of Wills

There are several different types of wills, each of which have their own requirements in order to be deemed valid.

Requirements for a Holographic Will

Requirements for a holographic will, as stated above, are less stringent than for the other types of wills. Currently, more than half of the states currently allow holographic wills. To be found valid, a holographic will must be written entirely in the handwriting of the testator. It must also be signed and dated by the testator. Unlike other wills, a holographic will does not need to be witnessed.

Because a holographic will is rarely witnessed, it is more difficult to prove the validity of a holographic will in court. However, in order to prove the validity of the will, witnesses can come to court and testify that they believe the will is written in the testator’s handwriting, that they heard the testator say the document signed as a will, and that the testator was of sound mind and not subject to undue influence or duress by any outside party.

Requirements for a Will

When writing a will, there are some important baseline rules to remember:

What If I Die without a Will?

If a person dies without a will, they are deemed to be intestate. This means that as opposed to your estate being distributed according to your wishes, the state in which you pass away will determine who will get your property. For example, if a person dies unmarried, has no children, and their parents are dead, their sibling will likely receive the bulk of their estate.

Consider a situation where the deceased and the deceased’s brother don’t get along. If the person had written a will, they could have determined that that brother would receive no part of their estate. However, since the have died without a will, the brother will likely receive the bulk of the estate as they are the closest living relative. As you can see, it is possible that your estate would be distributed against your wishes in the event you fail to make a will.

Who Is the Executor?

The executor is the person named in the will who is responsible for settling the estate of the testator according to the terms of the will. Duties of an executor include the following:

The executor is legally bound to act in the best interests of the testator, following their wishes as outlined in the will. If you have been named as an executor and you do not want to serve or are not able, you will have to file a declination. A declination is a legal document that declines your assignment as executor.

What Are Grounds for Contesting a Will

There are situations where parties may contest the validity of a will. There are several grounds that a party could raise which, if substantiated, could invalidate a will. Grounds for contesting the validity of a will are the following:

Do I Need a Lawyer to Make a Will?

If your estate is large and consists of many assets, it is recommended that you consult an experienced estate planning attorney when creating a will. However, even if your estate is smaller and consists of a few assets wherein a simple will would suffice, it’s best to consult an attorney to ensure that your assets are distributed according to your wishes at your death.

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Last Modified: 08-18-2015 09:29 AM PDT

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