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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.

  • Simple Wills: A simple will distributes property from the estate of a testator whose finances are uncomplicated. These are formulaic wills, where one checks the appropriate boxes and fills in the blanks. A simple will can be drafted without an attorney by filling out an easy form that can be purchased from a stationary store, a legal website, or found in a legal preparation book. However, although many use simple wills, some states deem simple wills as invalid.
  • Testamentary Trust Wills: A testamentary trust will is a will that puts some or all of your property into a trust. A trust distributes your assets to a beneficiary but is administered by a third person. The third person controls when and how the assets are distributed to the beneficiaries named in the will.
  • Joint Will: A joint will is created by two testators instead of just one. In the will, each testator leaves their property to the other. A joint will provides that the testator that dies first leaves everything to the other surviving testator.
  • Living Wills: A living will does not distribute property after the death of the testator. Instead, a living will provides instructions on what time of medical treatment you wish to receive if you become too ill to communicate. The instructions should be clear and detailed, however, the requirements for a living will are more flexible than for a testamentary will.
  • Holographic Will: A holographic will is a handwritten will that is not witnessed. A holographic will must be written entirely in the handwriting of the testator and signed and dated. Holographic wills are often created in emergency situations where the testator believes that death may be imminent. For this reason, the requirements for the validity of a holographic will are less stringent than for other wills.

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:

  • You must be 18 years of age or older
  • You must be of sound mind and capacity for a will to be deemed valid
  • The document must clearly state that this is your will
  • You must sign the will with your signature
  • The will must be signed in the presence of two witnesses
  • The will should be notarized as this will safeguard against any claims that the will is not valid

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:

  • Taking inventory of the testator’s estate
  • Appraising and distributing the assets according to the testator’s wishes
  • Paying any taxes on property
  • Settling debts owed by the deceased

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:

  • Lack of Capacity/Mental Illness. Exhibiting testamentary capacity is shown where the testator understand the nature and value of his or her property, who will get that property, and the legal effect of signing a will. Typically, testamentary capacity is not a stringent test. For example, even if one is exhibiting signs of dementia, as long as it can be shown that at the time the testator signed they will, they did not have symptoms of dementia, the will is likely valid.
  • Undue Influence. Undue influence occurs in situations where the testator is mentally and physically weaker and therefore subject to the influence of others. Undue influence can be found in situations where the influencer speaks to the testator’s attorney without the testator present, or even with their knowledge, isolates the testator, and/or pays for attorney fees on behalf of the testator.
  • Fraud. Fraud is found in situations where the testator is tricked into signing a will based on misrepresentations. For example, if one tells a testator that their son has died. As a result of that material misrepresentation, the testator leaves their estate to that person, as opposed to their son, who is in fact still alive. Fraud may also occur where the testator is tricked into signing a document, not knowing that they are signing their will.
  • Technical or Procedural Issues. Absent any of the above scenarios, a will may also be contested for failure to adhere to the procedural requirements for a valid will. Examples of some requirements may be that the will be notarized and be witnessed by two disinterested witnesses. Requirements for validity of a will typically vary from state to state. Therefore it is important to be familiar with the rules determining the validity of a will in your state.

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.

Photo of page author Kirin McKenna

, LegalMatch Legal Writer and Attorney at Law

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

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