Creating a Will

A simple will is an estate planning document that provides for disposing of your property after you pass away. When someone dies, the probate process is the procedure for managing assets, paying off creditors, and distributing property to the family members and beneficiaries. Making a will is simple and can make the probate process much simpler for your loved ones.

There are state-specific requirements for wills, trusts, and other estate planning records. Make sure your will provides for your estate planning needs. Talk to an estate planning attorney for legal advice about creating a will.

What Is a Last Will and Testament?

Wills are legal documents, usually part of estate planning, that declare how to distribute a person’s property after their death. Wills can also contain other provisions, including the appointment of a guardian for minor children if there is no surviving parent. The will maker is the testator. As the testator, you will have to follow your state’s laws in creating your will.

Each state has its own laws regarding the validity of a will. Some common legal requirements of a last will include the following:

  • Testator’s mental capacity
  • Disposing of assets to designated beneficiaries
  • Declaration of your last will
  • Signed
  • Witnessed
  • Executed

Testator’s Capacity

In general, you have to be at least 18 years old to create a valid last will and testament. However, some states have exceptions for younger people who are in the armed forces or married.

Additionally, you must be of sound mind, meaning that you have the knowledge that you are making a will and understand the effect the document will have, the nature of the property it covers, and the parties who will benefit from it. The sound mind requirement is the basis of many will contests.

Disposition of Assets

The will must contain at least one provision regarding who will inherit your assets. This can include bank accounts, life insurance policy proceeds, real estate, and financial accounts you want your loved ones to receive. If you need to name a guardian of any minor children, you will also need to include this information.

Declaration

As the testator, you’ll need to declare in writing that the document is your last will and testament. Some states also require testators to make this declaration in front of witnesses.

Signed

You must sign the last will and testament. However, if you are physically unable to sign, some states will permit a witness to sign the document on your behalf.

Witnessed

Most states require at least two witnesses at the will signing, and most require that witnesses be at least 18 years old. Some states require disinterested witnesses, meaning that they will not benefit from the will.

A holographic will is written and signed in your own handwriting. In some states, holographic wills don’t have to be witnessed.

Executed

The will must contain a provision declaring where you signed the will, the date, and that you signed it in the presence of witnesses.

Written Wills vs Oral Wills

The majority of states require a will to be in writing. A few states permit oral wills, but these are usually only permitted in specific circumstances, such as when someone is at imminent risk of death.

Reviewing and Changing a Will

It’s often a good idea to review your will at different points in your life to ensure that the document properly communicates your wishes, especially after major life changes. For example, you may want to add or remove heirs in the event of a later marriage or birth of a child. Or you might need to name a new executor in the event of the executor’s death. There are a few ways to review and make changes to your will.

One way to change a will after a life event is to revoke it in its entirety. This is usually done by creating a new will that states you revoke all your previous wills. You can then write “revoked” on your old will or otherwise take action that shows your intent to revoke the will, such as by tearing it and throwing it away.

Another way to change a will is to make an amendment to it. The amendment is also known as a codicil and is often used to make a small change in the will, such as who will inherit a specific item. You must follow the same state laws that apply to creating a will when you wish to use a codicil.

Do You Need a Lawyer To Create a Will?

You can create and execute most types of wills without a lawyer. You may even be able to use an online will template by following the step-by-step process. However, you still need to make sure it creates a valid will under your state laws.

Contact a local estate planning attorney with questions about preserving your final wishes. They can help you with the process so you can have peace of mind that the will provides for your loved ones. An attorney can also help with other estate planning needs, including a living will, living trust, or special needs trusts. 

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