Basics of Creating a Will

Creating a Last Will and Testament and a Living Will is one of the most important things any individual can do for his/her family and heirs. A Last Will and Testament legally authorizes the wishes of the creator, the testator, to be committed for execution upon his/her death. A Living Will legally speaks for a person who cannot speak for him/herself because of a catastrophic health condition or trauma that might leave the person incapacitated. What makes a Will even more crucial is the fact that everyday events are so unpredictable.

A majority of people in the U.S. understand the significance and importance of drawing up a Will. Even though most Americans agree that a Will is a critical part of having a sound financial plan, thousands of Americans die everyday without a Will and submit their families to the rigors of probate court and state laws. Unfortunately, many people think death cannot happen to them or they have plenty of time and therefore put off creating a Will until it is too late.

According to data collected by the National Center for Health Statistics (NCHS) for the U.S. Department of Health And Human Services (HHS) and the Centers for Disease Control and Prevention (CDC), about two-and-a-half million people die the United States annually. That translates to a death rate of eight hundred twenty-six people for every one hundred thousand individuals in the U.S.

The Benefits of Creating a Will

If the estate owner dies with a legal Will in place, he/she died testate. A will empowers the testator to control the rights of others over his/her property, assets, business interests, investments, financial resources, and even their family after his/her death. It is referred to as the Last Will and Testament because it denotes that this is the last expression of the testator’s desires and there by supersede any previously dated Will.

The estate will be able to avoid some probate taxes and court costs associated with probate and consequently leave more for the heirs. The testator will name an executor in the Will. The executor’s duties are to carry out the desires of the testator as per the instructions in the Will. A testator can designate a guardian for a minor children or custodian for a disabled person in a Will. It can also be used as an instrument for distribution in a Trust.

A Will requires the testator to take inventory of his/her possessions, business interests, and assets so that they can be adequately distribute among the beneficiaries and heirs. Testator’s assets will include any holdings in the testator’s name, partnerships, joint ventures, Trusts, or joint ownership arrangement.

An inventory of a testator’s assets can include:

• Life Insurance/Annuities
• Pension/Retirement Accounts
• Personal Residence/Real Property
• Funds/Savings/CDs/Money Markets
• Business/Company/Corporate Interest
• Investments/Stocks/Bonds/Mutual Funds
• Laws Suit/Structured Settlement Benefits
• Personal Property/Motor Vehicles/Jewelry/Collectibles/Antiques

The Consequence of Not Creating a Will

If the estate owner dies without a legal Will in place, he/she died intestate. In this case, the estate moves to probate court for settlement and the particular laws of intestacy for that jurisdiction will apply for the distribution and settlement of the estate. The probate court will appoint an administrator to act on behalf of the estate. The administrator’s duties are the same as the executor‘s duties in a testate case. The state will then determine the systematic distribution of the estate according to the laws of that state. If the deceased had no legal heirs, the state can claim the estate.

The Probate Process

The probate process requires similar actions by the executor or the administrator they include:

• Provide proof that the Will is valid and legal
• Present an inventory of all assets owned by the estate
• Notify all the persons named in the Will
• Notify all current creditors of the estate
• Notify any agency or company with interests in the estate
• Appraised all assets of the estate
• Pay all debts, taxes, fees
• Distribute all remaining assets as per the desires of the deceased

Rules of a Will

Even though each state has its own specific conditions and regulations, there are some general requirements for the creation of a Will.

• General requirements for Will to be legal include:
• The individual must be at least eighteen years of age
• An emancipated minor can make a legal Will
• The person must have a clear understanding of what a Will is
• The person must be of sound mind and memory
• The Will must be signed and dated
• In most states, a certain number of witnesses must sign the Will (number of witnesses varies by state and witnesses cannot be beneficiaries or close relatives)
• Some states require that specific language be used
• In some states, the executor named must be a resident of that state
• An individual should update his/her Will after every major life changes

Types of Wills

There are several types of Wills but not all of them are permissible or acceptable in every state. A Will is typically a written document but some states allow oral Wills but they do not necessarily apply to all the positions and belongings of testator.

• Living Will – This type of Will is not used to distribute assets but it is used to relate the specific healthcare wishes of the owner in the event that the person cannot express him/herself for continued or discontinued treatment. It contains specific instructions to be followed by a doctor or hospital in relation to permissible healthcare options.
• Simple Will – This type of Will allows for the allocation of testator’s possessions if the estate is straightforward and uncomplicated. Different laws apply in different states to this kind of Will and the distribution of assets.
• Deathbed Will – This type of Will is created in an emergency when the testator is faced with impending death. Though this type of Will is legal and binding, creating a deathbed will is chancy and precarious because the mental condition and capacity of the testator at the time of the Will’s creation can be challenged in court. In addition, wills created under duress and haste leave much room for error, omissions, inconstancies, legal irregularities, and may cost the estate more in taxes and fees because of time restrictions and lack of research into local regulations.
• Oral Will – This is a spoken Will as opposed to a written Will and is usually only accepted in emergencies when a written and properly executed Will is not feasible. Few states actually recognize this type of Will otherwise because of the high risk of mistake or fraud.
• Testamentary Trust Will – This Will actually sets up Trusts for part or all of the assets of the estate and the Trust can be the heirs or beneficiaries of the testator. The assets are transferred to the Trust and the beneficiaries named in the Trust now reap the rewards of the Trust. A Will can contain multiple Trusts and a Trustee is assigned to manage and oversee the execution of the Trust/s. This Trust can be used to provide for the care of a disabled loved one or a child.
• Pour Over Will – This Will is used with a living Trust, which the grantor creates to transfer control of part or all of his/her assets to a Trustee for administration while the grantor is still alive. Upon the death of the grantor, any assets not distributed through the Last Will and Testament will collect in the Trust created by the Pour-Over Will with named beneficiaries.
• Joint Will – This Will is made by two people leavening everything to the other upon the death of one and it also specifies what will happen to the assets upon the death of the second person. This type of will can prevent a surviving spouse from changing the original wishes of the deceased spouse in the event he/she remarries.

There are other types of Wills that might be best suited your needs and/or desires. If you need more information about Wills and Trusts, contact an estate planning attorney today.