MAKING A WILL LEGAL REQUIREMENTS

A legal will allows you to achieve your personal intentions. You can describe how your property should be divided, provide for your favorite organization or charity, state who will get your most prized heirlooms, set up trust funds and nominate a guardian for your minor children. The use of a Will can legally speed up the process of distributing all of your property after your death, and can save much on expenses. Distribution of your personal assets to your immediate family as soon as possible (after your death) will help them to avoid legal and financial difficulties and emotional stress.

Writing a will

Writing A Will is usually done in written or type written form. With the event of the modern computer writing a Will can be accomplished by the use of a word processing program. If the Will is duly signed, dated and witnessed according to all legal requirements of the state it will then be considered legal and binding. However, it is not commonly known but there exists other types of Wills. More and more states are recognizing new Holographic Legal Wills. These Wills are written by hand, not witnessed, and signed only by the maker of the Will. Also, some states still recognize an Oral Will, under special circumstances.

Legal requirements when signing a will

For your Will to be legally valid it MUST be signed in the presence of at least two independent witnesses and it also must be witnessed using the same writing instrument. The witnesses must sign the Will as well and in your presence, and in the presence of one another. When it comes time to sign the Will the state you live in will require you to be of sound mind and of legal age.

Independent Witnesses

In most states have you Will Witnessed is crucial its validity. The Will requires the signatures of two independent witnesses, and these witnesses must vouch for your present state of mind. A witness must also affirm that you are under no undue stress at the time you duly date and sign the Will. Both witnesses must acknowledge that they're independently witnessing your signature you inscribe on the Will and each witness must be completely competent to testify on your behalf in a court of law. The two Witnesses should also sign the Will in the presence of one another. In some states, it is unlawful for a witness to be a beneficiary of your estate. Most states have implemented these laws in order to prevent any "conflict of interest" from persons who are in line to receive gifts. Or someone who may benefit financially after you die.

What happens if I die without making a will?

A great many Americans die without wills. In the event this happens, state law takes control and looks after the dividing of your assets, choosing a guardian for your minor children, and even appointing a personal or legal representative to administer your estate. The decisions made by the state may not agree with what you want on these issues. E.g. the state in most cases will likely provide for distribution to your heirs, but oftentimes not necessarily in the amounts that you would have chosen. Or, your well-intentioned family and relatives (on both sides of the family) may often argue over who should be the guardian for your children.

How do I change my will after it has been signed?

You cannot simply delete out a paragraph or sentence and add an entirely new paragraph or a brand-new sentence to change your Will. You must either have a 'codicil' drawn on your behalf (which is an amendment to your Will) or create a new Will altogether. A codicil can be used to make subtle changes without revising the whole Will. Nevertheless, a codicil still must be signed (and witnessed) following the same legal formalities that were used for the initial Will itself. If you desire to make many changes, you should have your will rewritten from scratch, and include an official statement outlined in the new Will that revokes the old Will. In some states, a divorce has the very first effect of revoking your Will, at least as to those provisions that relate to your former spouse.

What does it mean when a will is contested?

When a Will is "contested" it means somebody is seeking to have a Will declared legally invalid by filing a lawsuit and/or other jurisdictional court proceeding while a Will is being probated. In most cases, this is an upset family member or relative who feels that he or she did not receive a 'fair share' of your estate, and they hope to gain a significantly better share by having your Will declared invalid. Other reasons a Will may be contested include claims such as: you were not of sound mind and were unable to understand what you were doing. Or, that you made the Will while under the undue influence or coercion of another individual. In some states you may have to include a 'no-contest' provision (legal clause) in your Will to discourage such legal challenges. This provision effectively states that anybody who unsuccessfully contests the Will receives absolutely nothing at all despite the Will having provided for at least a minor distribution to the challenging party. Another legal safeguard is to choose a few 'respectable witnesses' who can vouch for your mental state of mind?

What about probate - how can I avoid it

Probate is the court-supervised legal process that determines the validity of your Will (of course, only if there is a Will) rounds up your assets, pays your business and personal debts, state and federal taxes (and the expenses of administration) and then divides and distributes your remaining assets to those persons entitled to them. Probate has gotten plenty of bad press from the media for being time-consuming, frustrating, and costly. However, times have now changed, and the probate process in many states has become expedient, and much less distressing. In some states, families with very small estates may be able to use abbreviated probate procedures or avoid probate entirely. Even if you have a larger estate, it's possible to avoid probate with a little careful estate planning. And it's possible to structure your finances in such a way so that your significant assets will pass to others outside of the probate process. E.g. real estate property owned by two individuals jointly (with rights of survivorship) will pass directly to the survivor(s). Life insurance, IRA, and pension plan proceeds can go oftentimes directly to a named beneficiary; and realty property in a trust will be governed by the trust provisions without regard to the Will.

What does it mean to be an executor?

If you are named as the executor of an estate (and the probate court agrees to appoint you) it's essential that you collect and inventory all of the assets, pay off all debts, taxes and the expenses of administration, and then divide and distribute the remaining assets to those persons entitled to them. It can be a huge task depending upon the size of the estate, and it oftentimes involves a blend of legal, accounting, administrative, and often personal mediation skills. As executor you will need to make claims for any life insurance, employee, and social security benefits as well. By law you must also file income, estate, and inheritance tax returns, pay the taxes accordingly, and sell or distribute all of the person's assets. Your job also requires you to present a fair and reasonable accounting of your activities to the beneficiaries and the court. Quite obviously, these tasks require a considerable amount of your effort and time. It may be necessary (or even advisable) to hire an experienced lawyer to assist you with the tasks at hand.

What makes a will legally valid?

Generally speaking, the following factors must be present in order for your Will to be legal and binding, and more importantly, legally enforceable. (1) The will must always be in writing or written form. A videotape recording (in most states) of your final wishes is not considered legally valid. (2) The person making the will must personally sign the will. (3) The will must also be duly dated and signed by two (or, in some states, as many as three) competent witnesses. (3) The person making the Will must be competent of sound mind, not considered insane, not senile, or mentally incapacitated, and not acting under the duress or controlling influence of another individual.

When making a will does it need to be set out in a specific format?

In general terms, a Will must always be in writing and duly dated and signed at the end by the testator. Wills which are legally valid have been executed on pieces of scrap paper. To comply with the signing and witnessing legal standards (established by your state law) is more crucial than say the simple appearance of a Will. A Will simply scribbled on a scrap of paper or say a table napkin could be admitted to probate, so long as it incorporates all of the vital elements of a legally valid will.

Is a lawyer required in the preparation of making a will?

Absolutely Not! Wills which are created without a lawyer can be legally valid when the proper legal requirements and procedures are followed. There are a number of excellent books (along with computer Will software) covering the subject of Will preparation these days. They outline essential legal issues that you might wish to address and further outline the proper procedures. In most cases, where a person has a relatively simple estate, he or she can benefit by using these self-help books and computer Will software. In his or her case it may be sufficient and work fine.

Mental Competence (When Making A Will)

Being of Sound Mind is a legal term used for making a will. For writing a Will or for a last Will and testament this term is often used. Furthermore, it's quite true, being of sound mind is a crucial part of making a Will or if you prefer the term "Writing a Will." Being of sound mind means you fully understand that you are executing a last will and testament. More importantly, that you're familiar with your personal property as well as your immediate family, relatives and descendants. In some cases, disgruntled relatives and heirs may decide to contest your last Will and testament based on your so-called "mental incompetence," so in these circumstances additional steps need to be enforced at the time of the signing of your last will and testament. One important thing you could do at this time is to have ready a medical assessment of your mental competence. Why is this so important? Because for your last Will and testament to be legally valid (and, be accepted by a court of law) the Will maker/Testator must be found to be sound of mind. Three important factors of making a will are: (1) It MUST be in writing (2) It must be signed at the very bottom by the testator (which is you) and (3) Your last Will and testament must be witnessed by at least two individuals. And its most testator that all witnesses be present when your will is signed. Remember that, your witnesses cannot be beneficiaries of your estate (or married/defacto to a beneficiary of your estate) and they must be of a legal age in the eyes of the law.

The legal age for making a will

Anyone that is of "legal age" (and, in most states it's 18-years of age) and who is deemed sound of mind can go about making a Will. If there is particular property you wish to have divider-up at the time of your death, you should have a last Will and testament drafted on your behalf. Writing a Will is usually best left to the professionals. When making a Will or writing a Will, you'll need to decide who will be the beneficiaries and who will be the executor. The beneficiaries are individuals (or organizations) will who receive all or part of your property. The executor is somebody you appointed to see that your wishes are fully carried out. If there are minor children involved, you will also need to appoint a special guardian to help with the physical welfare of your children. It's most common in most states, that a child is recognized by law as an adult once they reach the age of 18-years. As soon as he or she attains that legal age, specific legal rights are granted to that person. This usually is the case for most of the states when it comes to making a Will.

Estate dispensation

The prime reason for making a Will is to allow for the dispersing of your personal property and assets after your death. By law, you can designate anybody you wish to be your beneficiaries and you can divide your property and assets in any way you desire. However, there are some exceptions to the rule. In some states of the country there are laws which allow a surviving spouse with the legal right to claim much of your estate despite of the provisions in your last Will and testament. As portrayed in modern literature and movies, special provisions may be added in the inheritance. E.g. somebody adds a Will provision that the oldest child in the family is to get the largest portion of the estate. This may make a good story in a movie, but the majority of probate courts today will look down on such provisions.

Estate left to spouse

Generally speaking, spouses are the main beneficiaries in a last Will and testament. Nevertheless, laws abound in most states protecting the surviving spouse from being completely disinherited. In a few states the spouse can actually take a non-compulsory share of the estate. This could be one half of the estate or even one third, in spite of the legal provisions in the Will. A legal means available to disinherit a spouse can sometimes happen because of the use of a prenuptial agreement. However, many courts keep a watchful eye and carefully are apt to closely examine these agreements in order to establish if the agreement was signed with "good intentions" and it contained a full disclosure of the assets. Consultation with a good lawyer can offer sound advice if you wish to place certain limitations on your personal property which you intend to leave to your spouse. This could be by way of a trust fund which comes into existence once you die. The following factors may help you in deciding which type of trust would best suit your circumstances: (1) The chance that your spouse's financial and other needs could increase in the future (2) the style of living which your spouse is normally accustomed to (3) does your spouse have the ability to provide for her or his needs (4) does your spouse know how to manage the trust assets as you wish (5) the possibility that your spouse may wish to remarry at after your death and what affect that may have on your young children.

Estate left to minor children

Often a surviving spouse is left with the entire estate in anticipation he or she will look after your young children. That hope doesn't always work out that way. Unfortunately, this often is not the case when the spouse isn't the biological parent of the child. Or perhaps the spouse can't look after young children. A common provision under such circumstances is the make available in the Will a trust to take care of minor children. This type of trust will secure sufficient financial support for the minor children until they reach the legal age of an adult. At this point in time, the balance assets of the trust will be divided between them. It's crucial to carefully choose the right trustee. Someone you trust and can rely on even after your death. They'll need to manage the trust and make the necessary distribution to the children. In most cases, a trustee will work with the individual you have nominated as the official guardian of your children. Many times, the guardian and the trustee and same person.

Estate left to an adult child

In some cases, an adult child will inherit a large portion of their parent's estate. Nevertheless, by law it's possible to disinherit an adult child, regardless of his or her needs or age.

Estate left to a grandchild

Many times a grandparent will leave a specific portion of their property to a grandchild to assist with educational needs and tuition. A grandparent may also leave their entire estate to the grandchildren knowing that the children's parents already are financial and with enough assets.

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