A will is one of the most important legal documents a person can draft. A will allows a person to dictate who inherits their assets and possessions upon death. With this type of document, a person can avoid the intestate process through which a court becomes involved in distributing assets. Dealing with the distribution of a loved one’s estate can be stressful for surviving family members and a clearly outlined will can help reduce this stress and deter potential conflicts among beneficiaries. Wills can also minimize the tax consequences associated with the transfer of a person’s belongings and ensure that family members continue to receive financial support. There are, however, certain rules and requirements associated with both the writing and the enforcement of a will. For more information, refer to the articles in this section.
There is no right or wrong will. In fact, the court recognizes many different kinds of wills in an attempt to ensure that a person’s last wishes are honored and to avoid declaring that there is no will for the person. The most common will used is a formal or statutory will, which follows established state rules such as a requirement of at least two witness signatures to ensure validity. In desperate or unforeseen situations courts may deem other types of special wills valid, even when a formal will was not created. Additionally, even when a person has their assets set aside in trusts, they may also create something called a pour over will to ensure that any forgotten assets are handled in accordance with their wishes.
There are a number of established practices used by estate planning attorneys to promote a smooth process of sending a will through the court system. For instance, modern wills are self-proving to prevent challenges to a person’s state of mind should the witnesses be unavailable. Additionally, whenever a will is changed or re-written there is special phrasing known as revocation to make certain that the right will is sent into probate. For those especially concerned that family members may challenge their will, a no-contest clause can be placed within the document.
Unless a person dies with less than a statutory amount of wealth, their estate must go through probate. Estates go through probate regardless of whether there is a will. Probate is a public record court hearing where the court determines whether the will is valid and then grants authority to the assigned executor. The executor, under the guidance of the court, handles the affairs and divides all the remaining assets once issues such as debt and taxes are taken care of. If there were also assets that do not pass through a will, the executor can help those receiving the assets to file the necessary paperwork and submit a copy of the death certificate.
Typically, not everything bequeathed in a will is actually distributed. Unless otherwise provided for, any debts and taxes to be paid must come from the total wealth within the estate. This is typically handled by selling certain assets such as a home, vehicle, or other valuable items and using the proceeds to pay any debt.
It can be a difficult decision determining who should draft your will. The traditional method is to use an attorney for the drafting and maintenance of the will. For those with more than one million dollars in total assets or those with special needs or minor children, this is the best option as an attorney knows the ins and outs of the law and can draft the will to follow your wishes.
For those with a small amount of wealth or no immediate family, there are will preparation services such as Legal Zoom and Quicken Will Maker. These programs allow you to enter your information and fill in the phrasing. Keep in mind that these services are self-service and the company will not be able to validate or offer advice with regard to the proper drafting procedures.
Finally, for those who do not have time to seek other methods, it is possible that you can draft your own will. When making your own will, it is a good idea to at least review some basic form wills or verify the laws of your particular state. If you are unsure of the various provisions and formalities that go along with a typed formal will, hand write the will to avoid the formalities.
Making a will is not a difficult process in itself, but the ramifications of an improperly drafted will can be costly. For section-by-section advice on drafting, see the article How to Make a Will. In general, all wills contain statements in the first section that prove the will is yours and that you intended it to be your will. The next section involves identifying family members and guardians if necessary. The final sections deal with distribution of property and who will be responsible for this distribution. Finally, all wills end with at least the writer’s signature. For typed formal wills, witness signatures are also important.
Everyone over the age of 18 needs a will. With this in mind, there are a multitude of free resources available for learning about wills and will drafting in this section. Many estate planning attorneys will offer free seminars at local community centers and teach the basics of will drafting. Some modern estate planning attorneys are offering optional partial self-serve will documents similar to those offered by drafting companies. The advantage to this route is that should the will become more complex, you are already established with an attorney for further advice. For a free consultation with an experienced estate attorney, fill out this case evaluation form to get started.