The Last Will and Testament:

What Is A Will? A Will is a legal document that sets forth your wishes regarding the distribution of your property and the care of any minor children. Depending on the types of assets that are left behind and the wishes of the Testator, a Will can be fairly straight forward, or quite complicated. Either way, it is extremely important to have this document in place prior to the time of death which can save your family time, money and grief as well as give you peace of mind. Equally important is to ensure that the Will is found to be valid. There are technical rules that need to be attended to in the Will’s creation, such as how it is executed (signed), and whether or not the document needs to signed in the presence of others (witnessed). Unfortunately, the death of a loved one can cause emotions to run extremely high and it is not uncommon to see families end up at odds over a Will. Some family members may take exception to what they were left in a Will, or that someone else received something they did not. The validity of a Will can be questioned, which is known as a Will Contest. These matters can become extremely emotional and hard to handle. If for some reason the Will is not found to be valid, the inheritance process will be dictated by the laws of intestacy, (also known as Intestate Succession). This may cause the wishes of the decedent to be ignored and distributed according to State Law.

Wills come in several varieties, including the following:

  1. Self-Proving/Testamentary Will: A self-proving will, also known as testamentary will, is the traditional type of will with which most people are familiar. It is a formally prepared document that is signed in the presence of witnesses.
  2. Holographic Will: Holographic wills are written without the presence of witnesses. They rarely hold up in court.
  3. Oral Will: Oral wills are spoken testaments given before witnesses. They are not widely recognized from a legal perspective.
  4. Living Will: A living will nothing to do with the distribution of assets, but rather sets forth your wishes for Medical Care in terms of life support should you be incapacitated. ( please see my post about health care proxy/living wills for more information)

Do I Need a Will? A will gives you sole discretion over the distribution of your assets. It lets you decide how your belongings, such as cars or family heirlooms, should be distributed. If you have a business or investments, your will can direct the smooth transition of those assets. If you have minor children, a will lets you provide for their care. Creating a will also minimizes tensions between survivors. Relatives battling over your possessions can weaken what may have otherwise been a strong family.

What Doesn’t a Will Cover? While wills generally address the distribution of your assets, there are a variety of items that are not covered by the instructions in a will. These items include community property, proceeds from a life insurance policy , retirement assets, assets owned as joint tenants with rights of survivorship and investment accounts that are designated as “transfer on death.”

What Happens If I Don’t Have a will when I pass?

If you do not have a will, you die intestate. In such a case, the state will oversee the distribution of your assets., the state distributes them according to a set formula. The formula often results in half of your estate going to your spouse and the other half going to your children. Such a scenario can result in the sale of the family home or other assets, negatively impacting the surviving spouse. This can create financial and emotional difficulties, particularly if your spouse was counting the assets to maintain his or her standard of living. Further complications can arise if your children are minors, as the court will appoint a representative to look after their interests.

Tax considerations are another important issue to consider, as a properly prepared will can minimize tax liability. This is particularly important to people with large estates. In the U.S., assets in excess of $2 million (as of 2008) are taxed when they are transferred from one person to another. That amount is set to increase to $3.5 million in 2009. In 2010, the estate tax will disappear before returning in 2011 at the $1 million level unless Congress takes action.

What information do I need to have to Get a Will?

When you are ready to prepare a will, compile a list of your assets and debts and be sure to include the contents of safe deposit boxes, items of sentimental value, family heirlooms and other assets that you wish to transfer to a particular person or entity.

How Can I Change My Will?

Changing your will is easy. Simply write a new will to replace the old one, or make an addition using an amendment known as a codicil. Ideally, you want to make any changes when you are of sound mind and in good health. This limits the likelihood that your wishes can be successfully challenged and avoids decisions made in haste or under intense emotional pressure.

What Do I Do With It Once It’s Done?

Creating your will is the first step in a two-step process. The second step is putting your will in the hands of your executor or professional advisor. Remember, your wishes can only be carried out if they are known. Putting your will in capable hands ensures that it will be available when it is needed.

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