Wills

Wills Law Explained: Safeguarding Your Property After Death

A will, an integral component of estate planning, is a legal instrument that directs the distribution of an individual’s assets posthumously. This documentation ensures that individuals of all financial standings can dictate the fate of their assets upon their demise. Moreover, a will can also specify guardians for underage children and select an executor to oversee estate-related proceedings in probate court.

An Overview of Wills

The “Last Will and Testament,” commonly referred to as a “will,” is a legal document that dictates how one’s assets should be distributed after death. Such assets encompass all possessions, ranging from real estate, bank holdings, life insurance policies, retirement funds, to stocks, bonds, and other personal belongings.

Dying without a will equates to “intestacy.” In such circumstances, state-specific intestate succession laws determine asset distribution, which often may not align with the deceased’s preferences. Therefore, crafting a will that lucidly expresses your intentions is paramount.

Varieties of Wills

Regardless of the complexity or magnitude of one’s assets, creating a will can be a prudent choice. Several types of wills cater to varying objectives. To ensure the validity of your will, adhering to certain universal principles is essential. Additionally, consulting with a legal professional regarding state-specific requisites is advisable. Here’s a glimpse into some prevalent will types one might contemplate.

Understanding Different Types of Wills

1. Simple Wills:

For many individuals with modest estates or uncomplicated assets, a simple will often suffices. It primarily lays out directives on the guardianship of minor children after one’s demise and how the assets should be distributed.

2. Testamentary Trusts and Pour-Over Wills:

A testamentary trust is initiated by a provision in a will and becomes active upon the testator’s death. The will assigns an executor responsible for establishing this trust. While anyone can be the beneficiary, such trusts are commonly set up for minor children’s benefit. Conversely, a pour-over will addresses assets unintentionally omitted from a trust. Trusts, whether testamentary or living, are favored by many because they bypass the often lengthy probate process.

3. Joint Wills versus Mirror Wills:

Couples sometimes opt for joint wills to bequeath their assets to each other. It’s a singular document, signed by both, allowing each to leave their estate to the other. However, its rigidity, given that the surviving partner cannot amend it, is its major limitation. Due to this, many experts advise couples to opt for mirror wills—separate but nearly identical wills for each spouse. Each document reflects the individual’s intent to leave their assets to their spouse, with provisions for secondary beneficiaries. As separate entities, either spouse can modify their mirror will if needed.

4. Living Will:

Contrary to its name, a living will doesn’t focus on asset distribution. Instead, it stipulates one’s preferences regarding medical interventions and life-support measures towards the end of life. A living will makes clear your intentions about life-support duration and conditions. It becomes null post-death, and therefore isn’t designed to convey posthumous wishes.

Key Components of a Valid Legal Will

1. Legal Capacity and Testamentary Intent:

A legal will can only be established by individuals possessing legal capacity and testamentary intent. Essentially, this means:

• Individuals deemed incapacitated by a court or those below the age of legal capacity (typically minors) are ineligible to draft a legally valid will.
• If a will is made under coercion or undue influence, the individual’s capacity or genuine intent may be in question. The will should distinctly express the intention of the person drafting it, often denoted as their “last will and testament.”

2. Written Documentation:

The will must be documented in writing. Although some areas recognize handwritten (holographic) wills, it’s crucial to confirm whether your specific jurisdiction acknowledges them to avoid potential legal complications. A common concern with holographic wills is the absence of witnesses, making it challenging to authenticate the document’s origin.

3. Signatures and Witnesses:

A legal will necessitates:

• The testator’s signature.
• Witness signatures. While the required number can vary by jurisdiction, a minimum of two is typical. Some areas might stipulate that witnesses observe the will’s signing, following the testator’s acknowledgment of its content.
• In specific jurisdictions, witnesses can sign a “self-proving affidavit” to validate the will’s legitimacy. This affidavit often needs notarization and can expedite the probate process. Familiarize yourself with your local witness prerequisites to ensure your will’s legality.

What to Address in Your Will

1. Appointment of an Executor:

Select an individual to oversee the enactment of your will. This individual, called the executor or personal representative, ensures your directives are followed. It’s prudent to designate an alternate executor if the primary choice is unable to serve.

2. Asset Distribution: Detail the allocation of your assets:

• Clearly specify the beneficiaries and their respective inheritances.
• Address the distribution of unspecified assets and the protocol if a beneficiary predeceases you.

3. Guardianship Provisions (for minors):

If you’re the parent of minor children, delineate a guardianship arrangement:

• Decide on a guardian for your children.
• Specify who will manage the children’s assets until they reach adulthood.

Being thorough and aware of your jurisdiction’s requirements will help ensure that your will stands firm in legal scenarios.

Key Questions to Discuss with Your Attorney

When scheduling a meeting with an attorney, especially for the first time, it’s essential to be well-prepared. Here are some significant questions you might think about addressing:

• Which kind of will best suits my needs?
• Can you explain the legal criteria in our state for drafting a valid will?
• If I don’t possess a written will, is a verbal one acceptable?
• How do I go about amending my current will?
• What steps are involved in drafting a new will?
• Will my estate be liable for any estate taxes?
• How should I select a personal representative?
• What are the implications if I pass away without a will?
• How can I ensure that certain relatives cannot contest my will?

Choosing an Attorney that Matches Your Requirements

Engaging with a proficient estate planning attorney can make a world of difference. Ideally, this should be someone with substantial experience in crafting wills.

Why is Consulting with a Lawyer Essential?

Engaging a lawyer can be a strategic move, even if you believe your estate is relatively straightforward. The nuances of wills vary, and their validity often hinges on meeting specific legal criteria, which differ from state to state. A skilled lawyer can guide you to identify the best type of will for your individual financial and family situation.

Moreover, lawyers can foresee and tackle potential challenges with your estate planning. They ensure that all documentation is filed timely and with the appropriate entities. By doing so, they alleviate some of the stress and complexities you might face.