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 What is a Will?

A will is an estate planning document that allows a person, also known as a “testator,” to designate the way in which their property will be distributed upon their death. The property that may be disposed of in a will could include both real or personal property. Generally in most states, in order for a will to be valid, the will must have each of the following:

  1. Be in writing. 
  2. Be signed by the testator. Although not typically a requirement, a will should also be dated, as this helps to lessen the confusion on which is the correct will if there are multiple wills. 
    1. If the testator is not able to sign, like if they are unable to use their hands, then they are able to make a mark (like an X) and the witnesses signing can attest that the testator did sign it.
  3. Be witnessed by at least two or more competent witnesses. Further, the witnesses cannot typically be interested, meaning that they cannot be named in the will or otherwise have a stake in the will. 
  4. The testator must have “testamentary capacity.” Testamentary capacity is typically met if the testator is above the age of 18, in the military, or  is legally married, and knows: 
    1. That they are creating a will; 
    2. The effect of the will is to distribute their property upon their death;
    3. They understand the property in which they are distributing; and 
    4. They understand who is receiving the property.  

However, the above mentioned  requirements will vary depending on the state in which the testator resides, as well as what type of will is being created. For instance, if the will is a holographic will, then it typically does not need to be witnessed, so long as the will is both written and signed by the testator. 

What is a Trust?

A trust is essentially a legal instrument where one person, known as a “trustee,” holds property for the benefit of another person, known as a “beneficiary.” Unlike wills, trust property may be transferred before the death of the testator, which is known as an inter vivos trust

Additionally, some trusts may be created through the creation of a will. Although the requirements for creating a trust also very by state, generally the following elements must be present to form a valid trust: 

  1. The person creating the trust must have testamentary capacity, intend to create a trust, and the trust must typically be in writing;
  2. There must be “trust res,” which is specific and identifiable trust property (like a house); 
  3. There must be a beneficiary that is identifiable; and 
  4. The trust must be created for a proper purpose, i.e. it cannot be created for an illegal reason, such as avoiding debts or obligations.

Some people may wish to create a trust for future, unborn beneficiaries. Like creating a trust for future grandchildren. However, in that case the grandchildren do not exist. If the trust is held for any potential grandchildren that might be born, then it is likely that the trust would be considered invalid.  

What Happens If I Die Without Creating a Will?

If you pass before you create a will, you will be deemed to have died intestate. In short, intestate means dying without first making a will to distribute your property. Every state has different rules as to what happens to your property if you die intestate. 

However, a common intestacy distribution scheme is that your property will be divided equally amongst your surviving family at the first generational level, and then distributed in equal shares. This means that your spouse or children may not receive your property in accordance with your wishes, as the law of your state will determine who receives what proportion of your property. 

Further, if you wish for your siblings or parents to receive certain property upon your death, it is better to draft a will before you die, in order to designate who receives what property. It is important to note that some property cannot be distributed in a will. 

Can I Make a Will by Myself?

As noted above, there are options to creating a will by yourself. For example, you may be able to utilize an online pre-made estate planning form or document in order to help you draft a will in accordance with your state laws. Further as noted above, you may simply create a holographic will, which is a will entirely in your own handwriting and signed by you. 

However, pre-made online forms or holographic wills are often not the best, or even the least expensive solutions for creating a will that properly distributes your property in accordance to your wishes. Creating a proper will is important to protecting both the distribution of your property after your death, and for protecting your family. 

For instance, if you create a properly witnessed and self-attested will, that may save your family from having to go through the probate process, saving them significant time and expense. Additionally, it may help reduce the amount of people that may contest your will. 

Can I Change My Will?

Yes, you are allowed to make changes or amendments to a will. Generally, there are two ways in which you may make changes to how your property will be distributed in your will:

  1. Codicils: A codicil is essentially a written amendment or alteration to your existing will; or 
  2. New Will: The other option for modifying a will is to simply revoke that will and create a new will. As noted above, when creating a new will it is important to date the wills in order to help the court determine which will came later in time and controls. 

You do not need a reason to change your will. If you want to change your will, then you have every right to change your will. If you wish to change the will to make sure one of your heirs, like one of your children, do not inherit then you have a right to do that. 

Who is an Executor?

Simply put, an executor is the personal representative of the estate that is designated by the testator. If the testator does not name an executor in the will, then the court will appoint a person to represent the estate, known as an administrator. 

Commonly appointed executors include parents, close friends, relatives, children, or spouses. The goal of an executor is to ensure that the testator’s wishes are protected and carried out in accordance with the will. 

Should I Hire an Attorney If I Want to Create a Will?

As can be seen, drafting a will in accordance with your intentions is often a complicated matter, as estate planning law is always changing and the law varies depending on the state you reside in. 

Thus, if you are in the process of making plans for the distribution of your property upon your death, it may be in your best interests to consult with a well qualified and knowledgeable will attorney. An experienced estate planning attorney in your area will be able to consult you as to how your local laws affect your intentions, and may draft a will in accordance with those laws. 

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