Can I Solve This on My Own or Do I Need an Attorney?
- DIY is possible in some simple cases
- Cases with complex assets or families are rarely cut and dry
- Complex cases may need tailored advice from a lawyer
- Many attorneys offer free consultations
Wills are also called a “last will and testament." It is a legal document that ensures your personal property, real estate, bank accounts, insurance policies, assets, money, and gifts are passed on.
Typically a simple will designation leaves these items to loved ones such as minor children, adult children, a surviving spouse, or other family. However, there can be complicated issues with passing your belongings along. Typical issues include going to probate court, challenges to your will, or your assets being sold to cover debts.
You can avoid issues by understanding what a last will and testament can do.
It can be helpful to know:
You will also have the choice to name someone as the executor of your will (sometimes called a personal representative).
You can also give someone “power of attorney" to help you make decisions if you are unable to. Creating a will can feel time-consuming and intimidating at first, but remember that you have resources to help you.
Wills are perhaps the most common and well-known form of an estate plan. A valid will allows a person to designate how their estate is distributed and otherwise managed upon their death.
In most circumstances, a person who creates a will (testator) can feel secure knowing that the will's instructions will be honored. On the other hand, a person who passes away without a will (called intestacy) doesn't have this security.
Not having a will runs the risk of a court or other estate administrator making decisions that do not reflect your wishes and intentions. Unfortunately, the failure to create a will can lead to disputes between family members, expensive lawsuits, intestate succession, and ruining relationships.
One of the most important decisions when creating a will is deciding on a competent and trusted fiduciary, called an executor. This person is also often called a personal representative.
This is the person that will carry out the instructions or requests contained in your will. Of course, you'll also need to create a list of "devisees" or beneficiaries. While a beneficiary can be an executor, they can also be a friend, family member, or professional that doesn't benefit from your will. However, it is most common for an executor to also be a beneficiary.
Estate planning laws vary by state, so it's best to consult with an attorney if you have specific questions about your state's laws.
Generally speaking, a person must have been of "sound mind" when they created the will. This means they:
Typically, at least one witness is required to verify the will at execution. It's best if this person is someone who won't benefit from the will. In some states, a will can also include a self-proving affidavit which ensures that the executor will not have to provide additional evidence to prove that the will is valid.
Although wills are usually made in writing, oral wills can be valid, and recently, digital or electronic wills have been upheld in some courts. A handwritten will (called a “holographic will" can be valid in some states, but typically wills are typed documents based on a template for your state. If you ever wish to make changes to your will, codicils can be used to document those changes. In most states, codicils must go through the same execution process as the will.
A will cannot violate state or other laws. As an example, a person cannot ignore a state's community property marriage laws. You could write your will claiming your spouse is not entitled to any property. However, a community property state will still leave your spouse any legal “community" property from the marriage.
Also, note that some states have passed heirship laws. These may require children to be listed as heirs in a decedent's will. A will that breaches heirship laws will likely not stand up in court, and the decedent (person who passed away) may be considered intestate (dying without a valid will).
An estate planning lawyer can answer your questions about wills and other estate plans. They can also explain applicable estate laws to you and help you to create a will that fits your needs and reflects your intentions. You should consult with an experienced estate planning attorney in your area or consider a DIY will form if you have a simple estate.
The section below provides additional links to relevant topics.
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.
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