Drafting A Will
A local lawyer can fill you in on the legal requirements for a living will in your state.
Most state forms require one or two witnesses to your signature. In some states, your signature as well as those of witnesses must be notarized. Some states restrict who may be a valid witness, typically excluding relatives and your doctor.
Once it's signed, give a copy of your living will to:
Your regular physician
Family members
Consider giving a copy to your minister or a member of your religious community, and to close friends as well.
The hospital you’re likely to use. You can mail it to their medical records department, with a cover letter that gives your date of birth and your Social Security number. Verify that they have received the document and have a record of it.
If you’re in a nursing home or are seeing a medical specialist for a serious illness, they ought to get a copy, too
Finally, you can put a card in your wallet saying that you have a living will and whom to call to get a copy. If you’re going into a hospital, bring a copy with you. Even if you sent one to the medical records department, it might take a while for the doctors to learn it’s there.
Maintaining a Living Will
There’s no need to update a living will. However, it’s a good idea to check in a few years to see if your state’s form has changed. It might be improved later, so you would want to take advantage of these changes. Also, by signing a new one, it shows you haven’t changed your mind.
All states’ laws allow people to revoke or cancel their living wills. Generally, you should tell your doctor and your family when you revoke or cancel a living will they already know about or have a copy of. If possible, send them something in writing.
No amount of planning can cover all the problems that crop up when we get sick. But it sure can help you and your family when heart-breaking decisions need to be made.
You definitely need a will if you have children. Even if you don’t have children, you probably need a will.
Each state has formal requirements for preparing and signing a will.
Generally:
You must declare that the document you’re signing is your will
Your signature must be witnessed by at least two or three witnesses, who must sign the will in each other’s presence
Each state has specific requirements for how your signature and the signatures of the witnesses must be worded
Types of Wills
A holographic will is handwritten, without witnesses. Few states recognize holographic wills, and only in very particular circumstances.
Oral wills, also called “nuncupative wills,” are only recognized in a few states and usually only in compelling situations such as the impending death of a soldier in wartime.
A self-proving will is one that has been witnessed and signed with all the formalities required by state law. A self-proving will saves a great deal of time and effort when it turns out that one or more witnesses can’t be located or are themselves deceased.
What Should My Will Include?
Your will should detail:
That you are of sound mind as you are reading and signing the will
The names, locations and dates of birth of your immediate family, including your spouse and all children, including adopted children. Talk with your lawyer about whether to name illegitimate children and stepchildren to avoid claims that you have simply left them out and would have provided for them if you’d been thinking of them.
Appointment of a guardian and alternate guardian for any minor children. Your lawyer will be able to tell you whether you should have a separate guardian to manage their finances.
A list of who should inherit specific items of property. In some states, this is handled more informally with a separate list that can be frequently updated, which is kept with the will.
What will happen to any remaining property not specifically mentioned by you
Who will be your “executor”, the person responsible for carrying out the directions you leave in your will, such as distributing the property and paying any debts and taxes
Where Should I Keep My Will?
A will should be kept in a safe place such as a bank safe deposit box or fireproof safe at home, where it can be easily located after your death.
If you keep your will in a safe deposit box, you’ll need to arrange for your executor to have access to the box after your death. Many states put a freeze on a safe deposit box at death, which makes it more difficult to retrieve the will.
When Should I Update My Will?
Your will should be updated whenever:
You marry or divorce
You give birth to or adopt a child
When a family member or other beneficiary of your estate dies
When someone you’ve named as an executor, trustee or guardian is no longer able to fulfill that role
When you decide to change an executor, trustee or guardian
When you want to change the way your property will be distributed
When you move to another state
When your net worth increases dramatically
Revising a Will
A will can be revised by:
Making minor changes in what’s called a “codicil,” a formal amendment to the will
Preparing an entirely new will revoking the prior will
Independent events such as divorce or adoption. State laws vary as to the effect these events may have on the validity of your will.
Although making a will is a sobering experience, your loved ones and friends will thank you for being so organized and thoughtful ahead of time.
Each state has formal requirements for preparing and executing a will. Generally, the testator must declare that the document that is being signed is the testator’s will. The signature must be witnessed by a minimum of two or three witnesses, who must also sign the will in the presence of the other witnesses. Each state has slightly different wording for the testator’s and the witnesses’ signatures.
Are There Other Types of Wills?
A will that is handwritten by the testator and signed by the testator, but has not been witnessed, is called a holographic will. Few states recognize holographic wills and only where all statutory requirements have been followed. Oral wills, also called noncupative wills, are only recognized in a few states and only under compelling situations such as the impending death of a soldier in wartime.
A self-proving will is one that has been witnessed, executed with all the formalities required by the state’s laws, and also signed and witnessed in the presence of a notary public. The benefit of a self-proving will is that it is not necessary to obtain statements from the witnesses at the time that the will is probated. A self-proving will saves a great deal of time and effort where it turns out that one or more witnesses cannot be located or are themselves deceased.
Based upon its contents, a will may be categorized as one of the following:
a simple will
a tax-planned will
a pour-over will
A simple will leaves the entire estate to one or more named beneficiaries. No portion of the estate is left in trust. A tax-planned will generally disposes of all or a portion of the estate to one or more testamentary trusts, and not directly to the beneficiaries. The trusts are used to avoid or minimize death taxes. A pour-over will generally leaves assets to an inter vivos trust - one that was created by the testator during their lifetime.
A living will is not used to dispose of property after death, but rather it is an expression of one’s personal position on the administration of artificial life support techniques and procedures. A living will is needed when you are no longer competent to make these decisions and become terminally ill or permanently unconscious. A health care proxy gives another individual the right to make these decisions for you. Living wills and health care proxies are often signed at the same time that a will is executed.
Picking Your Executor
The same considerations that are important in choosing a trustee should be used when deciding upon the executor of your estate. First and foremost, you should choose an individual or institution that you trust. An executor needs to gather assets, pay debts and expenses, and distribute assets to beneficiaries. The executor does not need to invest assets other than on a temporary basis but, on the other hand, a major role of the trustee is to prudently invest the trust assets so as to be fair to all of the beneficiaries. The role of an executor is limited in duration while a trustee might serve for many generations.
Where to Keep Your Will
A will should be kept in a safe place such as a bank safe deposit box or fireproof safe at home where it can be easily located after your death. . If the will is kept in a safe deposit box, you must arrange for the executor to have access to the box after your death. Some states put a freeze on a safe deposit box at death, which makes it more difficult to retrieve the will.
Reviewing an Estate Plan
There are a number of occasions that justify the review of the provisions in your will and your estate plan in general:
when you get married or divorced
the birth or adoption of a child
the death of a family member or other beneficiary of your estate
when an individual named as executor, trustee, or guardian dies or is unable to act as such
when you decide to name someone else as your executor, trustee, or guardian
Your will should be reviewed if:
the size of your estate changes significantly
you move to another state
there are changes in federal or state laws that could affect your estate
Revising a Will
A will may be revised in three ways:
Minor changes can be made to a will by preparing an amendment called a "codicil." A codicil needs to be executed with all the formalities required for signing a will but need not restate all of the unchanged provisions in the will.
A will may also be changed by preparing a new will revoking the prior will or by destroying the old will. Care must be taken when destroying a will to avoid intestacy (death without a will). A will may also be changed by independent events such as divorce or adoption. In certain states, a divorce automatically revokes any bequest to the former spouse. In other states, laws provide that a divorce revokes the will entirely. A new will should be prepared in order to remove the spouse as a beneficiary and/or fiduciary. The beneficiary designations on life insurance policies and retirement benefits should also be reviewed.
"Probate" is a court proceeding in which final debts are settled and legal title to property is formally passed from the deceased person- called the “decedent”- to his or her heirs. A probate case is filed in the county of the decedent's legal residence at the time of his or her death.
"Probate court”- sometimes referred to as “surrogate court”- is a lower level court in the state system. The clerk of your county court can help you find the right office.
There are usually streamlined - and in some places highly efficient - procedures set up by the local court system to handle the settlement of small estates, or even larger uncomplicated ones. In a few states, the procedure for small estates is so "expedited" that a trip to probate court might not even be needed - but that is because of the small size of the estate, not because of anything about the way the will was written.
Details of the probate process vary greatly by locality, but the following explanation should be helpful.
Usually, the first step is taken by the “executor”- the person named by the decedent in his or her will to process the estate- or another interested person who has the original will.
This person files a “Petition for Probate of Will and Appointment of Executor” or something similar. Some states give out pre-printed forms for this, so people can do at least that much themselves.
If there is no will, somebody must come forward and ask the court to be appointed as “administrator” instead of an executor. Most often, this is the surviving spouse or an adult child, although it might also be another interested person.
The "probate estate" simply refers to any property that’s subject to the authority of the probate court. Assets disposed of outside the probate process are part of the "non-probate estate."
After the court decides that the will is genuine and valid, the court issues an order "admitting the will to probate" or some similar proclamation. The County Clerk then records the will. State law might then require public notice of the probate proceeding by the publication of newspaper ads.
Occasionally, however, there might be an objection. For example, somebody might claim that the document being offered to the court is actually a forgery. Or, more commonly, someone claims that the document being objected to was revoked in a later Will. Whatever the objection or claim, it must be brought to the judge's attention.
The judge's order also formally appoints an executor. This appointment gives him or her full authority to handle the decedent's accounts. The Executor is given a certified court document that will be recognized by financial institutions and others, often called "Letters of Administration" or"Letters Testamentary."
A will is a public record, and so is the final settlement and inventory of estate property. As such, these papers may be viewed by anyone.
An executor or administrator:
Collects, inventories and appraises all assets that are subject to probate
Pays taxes and creditors
Pays funeral expenses
Pays the costs of administration, such as for a lawyer and appraisers
Formally transfers the estate property according to the will, or by the state laws of “intestate succession” if there is no will
Under state laws, the surviving spouse and/or children are generally allowed what’s called a “set-aside” amount, whether or not there is a will. Generally, that comes "off the top" first.
What remains of the estate after these payments are made is available for distribution to heirs and beneficiaries.
A contract is a legally binding agreement enforceable in a court of law. However, not every agreement between two parties is a legally binding contract. The law imposes certain requirements on contracts. The fundamental requirements for forming a binding contract are:
Offer
Acceptance
Consideration
