A person’s estate refers to all of their tangible and intangible property, including but not limited to:
- Personal items such as furniture, jewelry, automobiles, etc.;
- Bank accounts;
- Real estate, including an individual’s homestead and any other interest in other real property;
- Stocks, securities, cryptocurrencies, and other digital items of value; and
- Any other asset that holds a monetary value.
When an individual dies, an estate plan dictates how their property will be managed and distributed. A well-developed estate plan can minimize an individual’s loved one’s tax burden, as well as the need for probate court proceedings. The laws regarding estate planning address wills and trusts, as well as other legal issues such as:
- How an individual is to receive medical treatment when/if they become incapacitated;
- An individual’s organ donation status;
- Who will make legal and financial decisions on a person’s behalf if they become incapacitated;
- Who will care for an individual’s minor children, if any;
- Who will take over an individual’s business interests and/or run the business in their absence; and
- An individual’s funeral arrangements, especially information regarding any arrangements an individual made prior to their death, such as prepaid funeral services.
If a person does not create an estate plan for themselves, their estate will be distributed according to their state’s intestate succession laws. However, the laws on intestacy can result in property distributions that are not aligned with what an individual wanted. As such, it is important to understand and create an estate plan, including a will.
What Is A Will?
A will is an estate planning tool which allows a person to designate the way in which their property will be distributed upon their death. Common property that is disposed of in a will includes both real and personal property.
Although the laws differ by state, in order for a will to be valid in most states, the will must meet each of the following requirements:
- The will must be made in writing.
- The will must be signed by the testator (i.e. the person making the will);
- Although not generally a requirement, a will should also always be dated, as this can reduce confusion regarding which is the most current will if there have been multiple drafted wills;
- The testator must sign the will.
- If the testator is not able to sign the will, such as if they are unable to use their hands, they may make a defining 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 do not have an interest in the estate. This means that the witnesses cannot be named in the will or otherwise have a stake in the will; and
- The testator must possess testamentary capacity. A person is generally considered to possess testamentary capacity if they are above the age of 18, if they are in the military, or if they are legally married, and know:
- That they are creating a will;
- That the effect of the will is to distribute their property upon their death;
- That they understand the specific property in which they are distributing; and
- Who is receiving the property being distributed.
Once again, 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. For example, if the will is a holographic will, it generally does not need to be witnessed as long as the will is both written and signed by the testator.
What Are the Different Types of Wills?
There are several different types of wills, and each will has its own requirements that must be met in order to be deemed valid. Examples of the most common types of wills include:
- Simple Wills: A simple will is a will that distributes property from the estate of a testator whose assets are uncomplicated. Simple may typically be drafted without an attorney by filling out an estate form.
- It is important to note that some states may deem simple wills as invalid, and other states may still require the will be witnessed in front of a notary by two non interested witnesses to be considered valid.
- Testamentary Trust Wills: A testamentary trust will is a will that puts specific assets of an individual into a trust for the benefit of a named party known as a beneficiary.
- The trust will then distribute the testator’s assets to a beneficiary, and will be managed by a trustee. The trustee is the person that controls when and how the trust assets are distributed to the beneficiaries named in the will;
- Joint Will: A joint will is a will that is created by two testators instead of just one. A joint will provides that the testator that dies first leaves everything to the other surviving testator;
- Self-Proving Wills: These are executed wills that have been properly witnessed and signed according to all of the formalities required by a specific state’s law. Self-proving wills are the most common type of will;
- Oral Wills: These wills that contain unwritten dispositions of property, in which the testator orally communicates their wishes.
- It is important to note that oral wills are only recognized as valid in a few states.
- Living Wills: A living will is a will that does not distribute property after the death of the testator. Instead, a living will provides instructions on what type of medical treatment an individual wishes to receive should they become incapacitated
- Living wills are also commonly referred to as an advanced directive; and
- Holographic Will: A holographic will is a handwritten will that is signed by the testator, but not witnessed by any other parties.
- It is important to note that a holographic will must be written entirely in the handwriting of the testator, and must also be signed and dated. Holographic wills are often created in emergency situations where the testator does not have another option.
What Should I Consider When I Am Preparing My Will?
When preparing a will, an individual should have a clear understanding of their overall goals and intentions. In order to reduce the likelihood of will disputes or future legal contests, an individual should make their will documents as clear as possible.
Some other factors that are important to consider when preparing a will include:
- Considering the Entire Estate and All Assets: A person should account for all of their belongings and assets when preparing their final will so that way none of their property will be transferred without their knowledge or against their wishes;
- Name and Describe the Property as Clearly as Possible: The property items that are listed in an individual’s will should be clearly identifiable, solely based on the will descriptions. Clearly describing and identifying assets will reduce confusion and potential disputes over the assets named in a will
- For example, a motor vehicle designation should contain the year, make, model, color, and VIN number;
- Name all Beneficiaries Clearly: Similarly, an individual should name their beneficiaries as clearly as possible. It is important that a testator use beneficiaries names in combination with their relationship to the testator; and
- Include Specific Terms and Clauses: An individual should include any additional clauses in their will as needed. For example, terms which address modifying the will, or canceling a will if another will must be made may be included in the will.
As can be seen the overall intention in drafting a will is to be as clear and precise as possible, in order to avoid potential legal disputes or conflicts regarding the way that the testator’s property is to be distributed.
What Are Some Common Legal Terms I Should Know?
Common will terms include:
- Testator: This is the person who is making or creating the will;
- Beneficiary: These are the people who are to receive distributions from the will;
- Capacity: This term refers to an individual’s ability to make a will;
- Executor: This is the person appointed by the testator to handle will issues after their death;
- Witnesses: These are the 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 during the will signing; and
- Decedent: This is the legal term that refers to the person who died, which in this case would also be the person who originally created the will.
What Are Some Of The Most Common Will Disputes?
It is common for there to be disputes associated with a will. For example, there may be conflict associated with what a certain term contained in a will means. Such disputes may require rewording the terms of the will, or the will may be replaced with an entirely new will altogether if possible.
Other examples of common will disputes include:
- Disputes associated with the named beneficiaries;
- Disputes regarding the way in which the property should be distributed amongst the beneficiaries;
- Conflicts involving the executor named in the will;
- Conflicts regarding a specific asset named in the will; and
- Legal conflicts regarding the way in which the will was written, such as if the will was not written in a way that fulfilled all of the state requirements.
Will disputes typically occur after the testator has died. This creates certain difficulties, as it is then difficult to determine what the testator’s actual intentions were, as they are not present. Under these circumstances, the will’s executor may sometimes be required to make decisions on behalf of the decedent’s estate, but more often a judge will resolve the conflict.
Do I Need An Attorney For Help With Creating a Will?
If you wish to create a will, you should consult with an experienced will lawyer. An experienced estate planning attorney will be best suited to help you prepare a legally valid will according to your state’s specific requirements. Additionally, an experienced attorney will also be able to represent your interests in court, should any disputes arise.