Estate Planning Law

The Basics of Creating a Will 101

Even though death is a factual certainty, thinking about the end of our lives does not engender pleasant thoughts. Notwithstanding, planning for our eventual end is the smart thing to do.

Drafting a will is one of the simplest ways we can plan for our future, and the future of our loved ones. However, if you’ve never drafted a will or if you have a will but want to change it, learning more about the basics of creating a will can help give you peace of mind and help you protect your loved ones’ futures as well.

What is a Will?

A will, formally known as a “Last Will and Testament” is a legal document that, simply put, allows you to distribute your assets after death according to your wishes. Drafting a will tells the world what you want to happen with your property and leaves little to chance. It is a final gift and act of love to those who are closest to you.

Creating a will is but one method of passing your wealth onto those you wish to inherit from your estate. Drafting a will is an easy process, generally, and is typically inexpensive. Notwithstanding, you must observe all the formalities required by your state’s laws to ensure that it survives a legal challenge later. Failing to observe the formalities could mean that a judge must distribute your estate according to the relevant law and not according to your wishes.

What are the Benefits of Having a Will?

Before you draft a will, you should inventory all your assets, possessions, as well real property, and intellectual property. Doing this will help you understand what you have. The process will also help you start to think about to whom you will leave your property. It will also help you determine whether you want to disinherit anyone or leave something to charity.

Drafting a will allows you to name a personal representative of your estate. The law once referred to this person as an “executor or executrix,” depending on the gender of the person you nominated to look after your estate once you’re gone. Now, the Uniform Probate Code has eliminated that distinction and refers to the individual as a personal representative.

Your personal representative oversees distributing your bequests, paying your final debts, and filing your will in court. Drafting a will allows you a chance to nominate someone you trust to carry out your wishes and wrap up your final affairs. If you don’t name a personal representative, or die without a will, then a judge will appoint someone, and that might not be someone you trust.

Drafting a will while observing the legal formalities and laws in your state can help avoid conflict. To be sure, any person you disinherit might challenge your will based on fraud or under influence in court. However, bringing a legal challenge does not mean that the challenger will win the case. Overturning the wishes of a testator, or a person who died with a will, is difficult. However, your will could be discarded if you leave any ambiguity in the documents. Therefore, being specific about your bequests is vital.

Another benefit of having a will lies in property rights. You can keep your property until you die if you dispose of all of it through a will. By contrast, using a legal vehicle called a “trust” sometimes requires you to give your property away to a trustee. The purposes for which you might choose a trust vary. However, you can still use a will in conjunction with a trust.

Dying Intestate Can Cause Huge Problems for Your Family and Loved Ones

Unfortunately, people sometimes pass away without first creating a will. Dying without first creating a will is called dying “intestate.” Younger people who die unexpectedly often die intestate. Regrettably, older people sometimes pass away intestate, especially those people who don’t think they have “enough” to bother drafting a will. Even if you don’t think your property is valuable enough to bother drafting a will, having a will is the better option, as we will discuss.

You might wonder what happens if you die intestate. If that happens, your state’s intestacy laws take over. Intestacy laws follow strict rules as to who will receive your property if you don’t have a will. In other words, it is the default rules for distributing property after someone dies.

Dying intestate can be problematic for your loved ones. If you die intestate, then your loved ones must file a petition in court. The court orders distribution. It can be expensive and burdensome. Moreover, dying intestate can create situations in which the court will order your assets transferred to people you wanted to disinherit.

Perhaps more importantly, dying intestate means you cannot give to non-family members even if you would have wanted them to share in your estate. Intestacy laws do not recognize your friends or unmarried partners even though you wanted to bequeath them your property. Additionally, the state will not donate any of your money to charity. Your state’s intestacy laws will also divide your property equally, which might be contrary to how you would have distributed your estate.

Intestacy laws favor your closest familial ties. Under most intestacy laws, your spouse (or registered domestic partner depending on the state) is the first one to receive your property. Your spouse will share your estate with your children if you have any. If you don’t have a spouse, then your property goes to your children equally. If you have no spouse or children, then your parents take your estate if they survive you. Your siblings would take your property if your parents predeceased you. The law then looks to aunts, uncles, cousins, and the like. Your property will “escheat” to the state if you have no heirs. In other words, the state gets your property.

Basic Rules for Drafting a Will

Your state laws govern the requirements for drafting a valid will. At the outset, all states require people who want to draft a will to be 18 years of age or older. Additionally, each state instituted formalities that you must observe. You can find the formalities for drafting a will in your state’s Uniform Probate Code. Generally, you must observe the following rules:

• The will must be in writing;
• Bear the testator’s signature;
• Have the requisite number of witnesses present and sign the will;
• The testator must be of sound mind and body and know the full nature of their estate;
• Name executor/representative;
• Name co-executor (this is desirable but not mandatory);
• Name beneficiaries; and
• Date the will.

You need to keep your will in a safe place where your family could locate it when they need it. Additionally, you want to make sure that you have access to it if you want to revoke it or change it.

Do Wills Have any Limitations?

Wills are versatile documents that can accomplish what you want to do upon your demise. However, wills have limitations. For example, you cannot disinherit your spouse in your will. If you try to do that, the law allows your spouse to claim a share of your estate irrespective of your wishes.

Wills must go through probate court before any property can be distributed. Some states have adopted an expedited process to probate a will. Smaller estates can go through this process. However, not every estate will qualify for the expedited probate process. Otherwise, probating an estate could take approximately one year. The time needed to probate an estate would take much longer if someone challenged the validity of your will.

State laws dictate what you can do with your property. You cannot bequeath money to your pets (although you can create a trust you fund from your estate for the care of your pet). Additionally, you cannot change the beneficiaries of joint accounts, life insurance policies, and annuities in your will. You do not consider these documents as part of your estate because the funds are distributed automatically and not through the probate court.

Estate taxes are another consideration if your estate is large enough. Estate tax rules are always subject to change. As a result, you should consult an attorney or a tax professional to determine your estate tax liability.

What Kind of Wills Do Most States Allow?

Your state might allow various ways to distribute your property. Wills can be simple or complex, depending on your wishes and the breadth of your estate. So long as it is in writing, signed by the testator and with the requisite number of witnesses, a will may be as simple as one sentence. Conversely, a will could be extremely complex and contain numerous gifts, limitations, and appointments.

There are other provisions you can include in your will to reflect your wishes. Your will could include a provision that creates a testamentary trust. A testamentary trust is a legal mechanism that allows designated property to pass through the trust. However, any property you acquire after you create a testamentary trust must go through the probate. In that case, having a ‘pour-over will’ might help you avoid probate.

A ‘pour-over will’ is a will that leaves your estate to a trust. Your property is then distributed according to the trust’s terms. Sometimes people refer to this method of distribution as a living trust. You can leave your “rest, residue, and remainder” of your estate – which is a general phrase used to refer to any property not specifically bequeathed in your will – to the pour-over trust. The terms of the trust distribute the property.

There are some forms of wills that are either invalid or disfavored. Historically, the law did not allow oral wills and deathbed wills because of the potential for fraud. Now, a deathbed will is not necessarily invalid, but it might be easier to challenge. Oral wills are only allowed in the rarest of circumstances, if at all.

Married couples might choose to draft a joint will. Joint wills can create unnecessary confusion if one spouse survives the other. Therefore, a joint will might not be the best option for you. The better option might be creating mutual wills, which basically leaves all property to your spouse and your spouse leaves all property to you in separate documents. You should discuss these options thoroughly with your estate planning attorney before deciding.

The Future of Wills: The Uniform Electronic Will Act

The law of wills used in England directly influenced the laws of wills in the U.S. As such, we still use some ancient traditions. However, the law will slowly adapt to societal and technological advances. The latest advancement is the new Uniform Electronic Will Act.

The U.S. committee for uniform laws recently published a new body of law that determines how courts can handle an electronic will. State legislatures may make the uniform law a state law, either in whole or in part. Until then, the uniform law is helpful to courts who might encounter an electronic will.

Proponents of the new uniform law argue that change is necessary now that almost everything we do in life is computerized. Detractors, on the other hand, argue that electronic wills create uncertainty. Detractors say that electronic wills are subject to fraud, are too easy to change or lose, can be difficult to prove authenticity, and difficult to prove revocation.

What Other Documents Are Often Created When Drafting a Will?

Depending on your immediate and anticipated needs, you should consider creating other legal documents that work in conjunction with your will. For example, you might want to consider creating a health care proxy or a living will if your state recognizes them. You might also want to draft a power of attorney. Finally, you should draft a document that specifies your burial wishes and any other information your family might need after you’re gone.

How Do I Change a Will?

You should review your will every once and a while to be sure that it meets your needs. You might find that something has changed, and you need to update your will.

Changing a will is easy. You can either attach a document to your will called a codicil or create a new will. If you are making a simple change then a codicil might suffice. On the other hand, you might consider revoking your existing will and drafting a new one if the changes you need to make are complex. Oral changes are not permitted.

How Do I Revoke My Will?

We just discussed that you could revoke a will by creating a new will. The better practice is to include a provision in any will you draft that declares you are revoking all previous wills and codicils. Your intentions are clear if you include language to that effect.

There are other ways you can revoke a will. Basically, you can revoke a will by committing any act that shows you had the requisite intent to revoke. These acts can include:

• Burning,
• Shredding, and
• Crossing out provisions.

Your state law might differ. Therefore, you should consult an attorney before revoking your will.

When to Talk to a Lawyer About Drafting a Will

There are times in life when you need to plan for your future. Most people must feel ready to draw up a will. Others might wait for a particular event in their life like getting married, traveling abroad, or having major surgery. Other people wait until they have children before they draft a will.

Talking with an experienced estate planning attorney can help you explore your options and will allow you to distribute your estate as you see fit.