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What Is a Will?

A will is not just a tool for the wealthy. Wills are the most common way for people to plan for the distribution of personal assets after death. Sometimes, you hear it called a "last will and testament." Both terms have the same meaning. It's a legal document that expresses how a person's assets should be distributed.

A well-written will helps loved ones after you are gone. It can also give you peace of mind during your lifetime. Despite the importance of a will, most people die without executing their own will. Don't fall into that category.

An estate planning lawyer can help you create a comprehensive estate plan to meet your needs. An experienced lawyer with years of experience can provide critical legal advice.

Wills Can Be Used for Many Purposes

Wills vary from simple to elaborate. It all depends on the needs and goals of the person making the will.

For example, some people make a will to name a guardian for their minor children. The probate court will have the testator's guidance regarding guardianship if something happens to them. Others use a will as part of a broader estate plan. This estate plan may include the following legal documents, including:

Wills can be a way to:

  • Distribute property
  • Name guardians for minor children
  • Make the probate process more manageable
  • Help loved ones avoid disagreements

A will is beneficial if you have minor children or a few prized possessions (even if their value is primarily sentimental). You can ensure that certain items you promised to particular family members or beneficiaries will end up with those individuals.

A Will Does Not Control the Distribution of All Assets

Some assets can pass outside of probate whether you have a will or not. A will does not control the distribution of certain assets. The following types of assets may be distributed outside of probate in certain instances:

A Will Helps You Avoid Intestacy

With a will, you can decide who will receive your assets when you die. You get to select the beneficiaries if you die without a will. Your assets will be distributed according to state law. Your state's rules determine the distribution of your property. Sometimes, this aligns with what you would have advised. At other times it does not. This occurs through the court-supervised distribution of your estate. This process is called probate.

A Will Can Simplify the Probate Process

Probate can be a lengthy process. It's more difficult when there's no will in place. All is not lost, though. An experienced probate attorney can provide legal services to ensure that the distribution of a person's assets proceeds according to probate law.

Will Requirements

Formal requirements for wills vary from state to state. However, there are similarities among the states.

Sound Mind

Generally, the testator (the one making the will) must be an adult of "sound mind." Being of sound mind means the testator must understand the document's full meaning.

Writing Requirement

Wills must be written in most cases. However, some states allow for a holographic will. A holographic will is a will written in the testator's handwriting and not witnessed.

Although there may be a procedure under the law for an unwitnessed, handwritten legal document, this choice offers only some legal protection. The better and more legally enforceable option is to use a typed or preprinted document witnessed according to the applicable state law.

You must sign your will for it to be legally valid. Some exceptions allow a person who cannot sign to allow another person to sign on the testator's behalf.

If that is the case, you must direct another person to sign the will in the presence of witnesses. The exact requirements vary by state law. Contact a local estate planning attorney to ensure you have met all the legal requirements.

Amending or Revoking a Will

You may revoke your will in writing. You may also revoke your old will by executing a new will. Your will remains valid until you make a new one.

If your circumstances change, or if you want to change your will for any reason, you can. You can revoke or amend your will anytime and for any reason.

Who Can Challenge a Will?

Not everyone will be happy about how you distribute your property. However, just because someone disagrees doesn't mean they can contest the will. According to basic probate laws, only "interested persons" may challenge a will. States have their own laws that define an interested person. An interested person can only challenge a will for valid legal reasons as defined by your state laws.

Reasons a will may be declared invalid include:

  • Capacity
  • Undue influence
  • Fraud
  • That the document fails to meet the state law requirements for a valid will

If you believe that a will impacting your life was improperly executed or has been improperly followed, you may want to seek professional legal advice. A local estate planning attorney can help.

Is a Lawyer Required?

You can create a will, or any number of other legal documents, without help, but a lawyer can be essential in some cases. You can get a referral from a trusted friend or family member. The state bar or local bar association may be able to provide a listing of attorneys.

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 create a will that fits your needs and reflects your intentions.

When you engage an attorney, you enter into an attorney-client relationship. This fiduciary relationship brings you further protection. Whether you need a lawyer's help depends on your circumstances and your goal in creating the will.

Simple Wills

If you don't have a complicated financial or family situation, a simple will may be enough to meet your needs.

Most people can create a simple will by using ready-made online forms. You can create a will with in under an hour.

Complex Wills

However, some wills involve complex issues, so you may benefit from the help of a lawyer. For example, if you have a child with special needs, you may benefit from creating a living trust and a pour-over will. Or if you have a blended family or children from a prior marriage, you may need legal assistance to help determine the best way to structure your will.

Legal Issues Surrounding Your Will

Attorneys often are retained when a will may be contested. For example, plan for a legal fight if you plan to disinherit a spouse or child, to the extent allowed under your state's law. You'll want to be doubly sure your will is legally sound. Your will must be able to withstand any legal attack.

While a simple will is fairly straightforward, estate planning can get complicated quickly. The Estate and Probate Law Glossary provides definitions to help you understand estate planning and probate terminology.

Contact a Local Attorney

Contacting an attorney is usually a good idea when you need legal advice about a will. An experienced lawyer with years of experience can provide critical legal advice when you need it most.

You can consult with an experienced estate planning attorney in your area if you need assistance. Or you can obtain a DIY will form if you have a simple estate.

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