A last will and testament is a legal document that determines what happens to your property after your death. It is an estate-planning tool that is often used in conjunction with other devices, such as a trust. Making a will is a responsibility, as well as a right of individuals, and is protected by law.
Functions of a Will
A will states who receives what property, in what amounts, and when. Property distributed under the terms of a will becomes the “probate” estate. It should be noted that a will and thus the “probate” estate covers only assets held in the decedent’s (person who has passed away) name. It doesn’t cover jointly held assets or those with beneficiary designations (IRA’s, Insurance Policies, etc.).
A will may also have other functions. It may be used to name a guardian for any minor children, or to create a trust and name a trustee to handle property after death on behalf of children or others. It is also normally used to name a personal representative to handle the decedent’s property and affairs from the time of death until the estate is settled.
Why Wills are Important
Having a will is very important because of what can happen when there isn’t one. When an individual passes away without a valid will, the person is said to have died “intestate.” A court appoints an administrator to handle the decedent’s affairs, and his or her property is then distributed by a formula fixed by law. The laws for distribution of an intestate estate are rigid and generally do not make provisions for any special situations. After payment of taxes, debts, funeral expenses and administrative costs, the property goes to the surviving spouse, children and/or relatives. The laws are specific as to how property is to be distributed, including which relatives have priority and how it is divided.
In other words, the law will decide who receives your property, without any regard as to what you would have preferred. Perhaps you would have given a monetary gift to a good friend or a charity, but without a will it all goes to family. Or maybe you wanted to make specific bequests to family members or friends of collectibles, sporting goods, vehicles, jewelry or family heirlooms. Or maybe you don’t want your children to share equally, as they would if you die without a will. To avoid these types of situations, it is wise to create a last will and testament to guarantee that your property passes to the people that you select in the manner that you desire.
What Makes a Will Valid?
Finally, for a will to be valid, it must be in writing, the testator (person creating the will) must clearly identify themselves as the maker, and they must clearly state that it is their last will and testament. The testator must declare that they revoke all previously made wills and codicils (modifications to parts of an existing will). The testator must demonstrate that they had the capacity to dispose of their property and are acting voluntarily (of sound mind, usually age 18, and free of any improper influence). The testator must sign and date the will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries of the decedent’s estate). The witnesses must then also sign and date the will. The testator’s signature should usually be placed at the end of the will. If this is not observed, any text following the signature may be ignored.
An individual may go out onto the Internet, and find numerous sites that offer forms to create a will. Most of these are generic in nature and don’t provide for some of the specifics that you may want to accomplish. In addition, they may not be appropriate for the state in which you reside and could be rejected by the courts. Thus, it is strongly recommended that you seek a qualified attorney when establishing your last will and testament.