A will is a legal document that determines what happens to your property after your death. A will states who receives property and in what amounts. Property distributed under the terms of the will become the "probate" estate. Making a will is a responsibility, as well as a right that is protected by law.
In addition to distributing or transferring property, a will may have other functions. It may be used to name a guardian for any minor children or to create a trust and designate a trustee to handle an estate (property left after death) on behalf of children or others. A will may also be used to name a personal representative or "executor" to handle a decedent's (the person who died) property and affairs from the time of death until an estate is settled.
A person does not need to have a large estate to plan and prepare a will. Anyone who owns property, whether "personal property," such as cash, stocks, jewelry or furniture, or "real property," such as land and/or a house, should prepare a will. If married, each spouse should have a will.
A will should be made when a person is "legally competent" (of sound mind and at least 18 years old). It should be prepared while its maker is in good health and free from emotional stress. In other words, to make a valid will, you must understand such things as what property you own, its value, and whom you are leaving it to when you die.
When there is no 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 according to a formula fixed by law. The laws for distribution of an intestate estate are rigid and generally do not make accommodations for those in unusual need. 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 the property is divided.
Each state has its own laws that determine the requirements for a legal will.
1. The will must be written, dated and signed;
2. The person who makes a will (called a "testator") must be legally competent and acting voluntarily (of sound mind and free of any improper influence), and be at least 18 years old; and
3. The signing of the document must be witnessed by at least two legally competent individuals (one of whom may be a notary public) and signed in strict accordance with technical formalities. Witnesses do not need to know the contents of the will and should not be beneficiaries (persons who will receive something) of the will.
Probate is the legal process by which the affairs of a deceased person are settled and title to his or her property is transferred to the heirs.
A will is effective only at death and may be changed or revoked at any time before death. A will should be revised to reflect any changes in circumstances, personal choices or resources. Changes are often made by a simple document called a codicil (a supplement to a will), or by redrafting the will. An attorney should be consulted when making changes to ensure that changes are legal and properly made.
A will should be reviewed and updated as conditions and circumstances change. For example, changes may be necessary when:
* The family changes as a result of a birth, adoption, marriage, divorce or death;
* Substantial changes occur in the amount or kind of property owned;
* Tax laws change;
* Residence changes from one state to another;
* The designated executor, guardian or trustee can no longer serve; or
* You decidefor any reasonto change the distribution of your estate.
A will is valid until legally revoked or changed, and becomes final or effective upon its maker's death. In the event of a divorce, a will automatically excludes the former spouse unless it expressly states otherwise. (Complications could result, however, if no property settlement agreement of the divorce exists.) Periodic reviews are important to make sure the will conforms with changing lawsas well as the will-maker's intentions.
The signed original document should be kept in a safe place. As with all vital papers, this document should be stored where it is protected (such as a bank's safe deposit vault), yet readily accessible when needed.
A copy of the will that notes the location of the original document, and a letter of instruction that contains numbers for bank accounts, insurance policies, credit cards or other financial details, should also be prepared. The letter may also contain instructions regarding burial, cremation or anatomical gifts, and should be given to the executor or will-maker's attorney. Because this letter may function as a plan for handling important estate matters, it should be as complete as possible.
The advice of an expert on this complex subject could prove invaluable in preserving the value of the estate and assuring that property is distributed as intended. Drafting a will is an important and sometimes complex matter that involves the judgment and skills of an attorney. It is a critical process that requires legal knowledge, informed decision-making, and coordination with other estate planning documents.