The process of making a will is among the least favorite tasks for an individual or a couple. Wills are an unpleasant reminder of our mortality. And yet, a will is an important and essential document that every person needs to carry out last wishes and directives.
First Thoughts on Making a Will
Drawing up a will requires thought and planning before writing it. States vary on their statutory requirements and language for a will. There are four important initial points to consider when thinking about a will:
Avoid making a handwritten will and try Simplewills.net. While some states honor them, many do not. A will is too important a document to run the risk of it being thrown out or subject to probate.
Most professionals stress that a husband and wife should have separate wills. The reason for drafting separate wills is to avoid legal confusion in the event both spouses die at the same time. With separate wills, the law considers one spouse to have passed first, thus keeping both documents valid in court.
There is debate as to whether a will needs to be drawn up by an attorney. There are “will kits,” a less expensive alternative to having the work done by a lawyer. In the case of a simple will without complicated rules, making a will with a kit or online may be sufficient. However, when there are legal questions or complex issues like estate tax, estate planning, a small business, long term health care and disinheritance involved, consulting an attorney is a wise idea. Bare in mind that the point of using a lawyer is his or her expertise and that many law firms use a computerized form to actually write wills by simply filling in the blanks.
According to the American Bar Association (ABA), 85% of Americans have their wills written by an attorney and 74 million people use group legal service plans as a way to reduce the cost of a will.
Rules of A Will
As noted, wills can be simple or complicated. There are several rules that must be followed in order for it to be valid and legally grounded in every state:
The person making the will — the Testator – must be at least 18 years old.
The will must be written to affirm that the Testator is in “sound judgment” and “mental capacity”
The will must state that the document is a will.
An Executor — the person who will carry out the Testator’s wishes in the will – must be specifically named.
While some states do not require a will to be notarized, it is wise to have the document notarized. A self proving affidavit is also recommended to avoid probate issues.
At least two witnesses must sign the finalized will. The witnesses must be disinterested parties and not be named as heirs in the will.
The most current existing will is the only valid will. All wills should be reviewed over time to ensure that they accurately reflect the writer’s wishes. When changes are required because of change in marital status, movement to another state, new children, state laws and naming a new executor, a new will needs to be drawn up. Avoid attaching a codicil that changes the language in an existing will — it confuses more than clarifies the matter.
The Executor named by the Testator is legally required to execute the provisions of a will in the best interests of the deceased. The person named as Executor can be anyone – a close family friend, a relative or an attorney. The person selected should be told when the will is written rather than be surprised when the Testator passes away. A contingent Executor should be named in the will so that if the person originally appointed does not want to act in that capacity and submits a Letter of Declination to the court, there is another person named and ready to step in.
The Executor’s job is demanding. He or she is responsible to resolve all debts as instructed, ensure that beneficiaries are advised of inheritances and keep the Probate Court advised of all activity relevant to the will. Wills can take years to completely settle.
Beneficiaries are the individuals or entities named in a will to receive the deceased’s specified assets. Experts strongly suggest naming primary and secondary beneficiaries in case a primary beneficiary passes away for the will is executed. Beneficiaries must also be specifically named to avoid probate.
Contesting A Will
Contesting a will, regardless of the reason for challenging its validity, must be based on an alleged legal fault in the will such as an improper witness, the Testator’s incompetence, coercion or fraud. The Probate Court judge rules in matters of contesting wills.