WILLS

A vast majority of us – about 70% – do not have a will. Writing a will is easy and inexpensive, and once you are done you can rest easy knowing your money and property will be distributed according to your wishes. Following are a few questions that will help explain the process of drawing up a will and what to do with it once you have a will.

What is a will? A will is a document that is created to help make your loved ones decision at the time of death. The will contains important direction as to your wishes for your funeral. It can also contain your direction on dispersing the estate among your loved ones. Your Will can also help to name someone to be left in charge of your children if something was to happen to you. This very important when their are infants or young children involved in the family. The will also simplifies the legal process for the lawyer which will result in minimizing the legal costs that your family will encounter.

One of the most important aspects of the will is that it may prevent controversy. Your will will help serve as a guide for your family.

What if I don't have a will? If you die without a Will, you have died in testate. Your property must go through the probate process in order to have the legal title to the property transferred to your heirs at law. Applicable state or provincial statutes define your heirs at law. The law of the state or province where you live controls the distribution of your personal property. The rules for determining who gets property distributed from an in testate estate have many variations. Subtle differences between the rules can have a material effect on who inherits when there is no Will. 

Who can make a Will? Making a will that will accomplish what you want it to isn't nearly as complicated as many people fear. There are just a few simple rules; follow them and your wishes will be carried out.

  • Age: To make a will, you must either be at least 18, or an "emancipated" minor.
  • Mental State: You must be of "sound mind" to make a valid will. It's not a rigorous requirement. The standard interpretations require that you: know what a will is and that you're making one understand the relationship between yourself and those persons who you would normally provide for, such as a spouse or children understand what you own, and be able to decide how to distribute your property.

Do I need a lawyer to make my Will? No. Making a will does not always involves complicated legal rules, and some people can draft their own will with the aid of a good self-help book or software program. You do need to know what you own, whom you care about, and have a good self-help resource to guide you. However, if you have questions that aren't answered by the resource you're relying on, a lawyer's services are warranted. 

What makes a Will legal? Any adult of sound mind is entitled to make a will. Beyond that, there are just a few technical requirements:

  • The will must be typewritten or computer generated (unless it is a valid handwritten will, as discussed above). 
  • The document must expressly state that it's your will. 
  • You must date and sign the will. 
  • The will must be signed by at least two, or in some states, three, witnesses. They must watch you sign the will, though they don't need to read it. Your witnesses must be people who won't inherit anything under the will. You don't have to have your will notarized. In many states, though, if you and your witnesses sign an affidavit (sworn statement) before a notary public, you can help simplify the court procedures required to prove the validity of the will after you die.

Do I need to file my Will with a court or in public records somewhere? No. A will doesn't need to be recorded or filed with any government agency, although it can be in a few states. Keep your will in a safe, accessible place and be sure the person in charge of winding up your affairs (your executor) knows where it is.

Where should I keep the Will? Most States do not have a government department in charge of a general repository for Wills. Most wills are retained either by the law firm who prepared the Will or at the residence of the person who made the will. 

Most law firms that hold the will will keep the Will in safe keeping free of charge. The will can be picked up by you at any time or the law firm will send the will to you upon receiving a written letter to this effect from you or your executor upon your death. This is a relatively safe procedure. You should verify however, in what manner are the Wills stored, that is, whether the Wills are stored in a Vault or in a filing cabinet at the law firm. Your decision should be governed accordingly. 

We recommend that you do not leave the will at your residence. Not only is it susceptible to theft, but in the event of a fire, your will might be destroyed. We further do not recommend that you keep your Will in a safety deposit box, as in some states the safety deposit box is sealed at the time of death. Keep the Will in any other secure place and ensure that your executor is aware of its location.

What is the basis for a Will to be contested? Most of the challenges to invalidate Wills are by potential heirs or beneficiaries who got little or nothing. Questions on the validity of a Will must be filed in probate court within a certain number of days after receiving notice of the death or petition to admit the Will to probate. 

The typical objections: 

1. The will was not properly drawn, signed or witnessed, according to formal requirements 
2. The decedent lacked mental capacity at the time the will was executed 
3. There was fraud, force or undue influence; or 
4. The will was a forgery. 

If the Will is held invalid, the probate court may invalidate all provisions or only the challenged portion. If the entire Will is held invalid, generally the proceeds are distributed under the laws of intestacy of the probating state or province. Needless to say, if there is even the possibility of a Will contest, an experienced probate lawyer is advised. 

What if I have young children? If you have young children, you should choose a personal guardian - someone to raise them in the unlikely event you can't. If your children are young, you've probably thought about who would raise them if for some reason you and the other parent couldn't. It's not an easy thing to consider. But you can make some simple arrangements now that will allay some of your fears, knowing that in the unlikely event you can't raise your kids, they will be well cared for.

You can use your will to name the person you want to be the "personal guardian" of your children if one is ever needed. Then, if neither you or the children's other parent can raise them and a court must step in to appoint a guardian, the judge will appoint the person you nominated in your will (unless, for some reason, it is not in the best interests of your children).

If you don't name a guardian in your will, anyone who is interested can ask for the position. The judge then must decide, without the benefit of your opinion, who will do the best job of raising your kids.

What can a Will NOT do? A will can't be used to leave:

  • Property you held in joint tenancy with someone else. At death, the deceased's share will automatically belong to the surviving joint tenant(s). A will provision leaving the deceased's share to someone other than the surviving joint tenant, would have no effect unless all joint tenants died simultaneously.
  • Property that was transferred to a living trust.
  • Proceeds of a life insurance policy for which there is a named beneficiary.
  • Money in a pension plan, individual retirement account (IRA), 401(k) plan or other retirement plan.
  • Money in a payable-on-death bank account.