LEGAL DICTIONARY

Will

A will is a legal document that allows people to express their wishes posthumously for how their property should be managed and distributed after their death.

It is not essential to make a will (sometimes known as a last will and testament) before you die. However, not having one could lead to legal, logistical, and emotional headaches for family and friends after your death in order to secure your assets or care for your children.

In this article, you’ll find out what a will can do and what types of will can be prepared. We’ll also explain what needs to go into a successful will and how it is possible to write your own will.

What to Include in a Will?

A will has a number of functions. First of all it must name the executor of the estate. This is a crucial element as it empowers your chosen descendants to legally manage all your assets.

Next, the will needs to explain who the beneficiaries of the estate will be and instruct how all your property is going to be distributed. This will help the executor carry out your wishes when you die.

In addition to this, a will also provides plans on who should become guardian to any children or minors under the care of the deceased as well as providing for pets.

In summary, a will needs to contain the following:

  • The name of the person/people responsible for managing the estate (known as the executor)
  • The names of beneficiaries
  • Instructions on how the assets and property are to be distributed
  • Who will be become the guardian of any minors or children

What Wills Can and Cannot Do

A will has many different requirements and can be a far-reaching document. However, there are, of course, set limits on what a will can and cannot do. Legally recognized wills are able to do the following:

  • Name beneficiaries and executors
  • Appoint guardians for children and their property
  • Set plans for paying off debts and taxes from the estate
  • Provide care for pets of the deceased

On the other hand, however, wills can’t:

  • Leave funeral instructions
  • Avoid probate
  • Put conditions on gifts such as marriage or divorce
  • Give money for illegal purposes
  • Leaving money to pets

Types of Inheritance Wills

Not all wills are equal. Most people are familiar with testamentary wills that are written documents that explain how a deceased person (known as the testator) wishes to distribute their assets after death. However, there are many other types you may encounter too.

  • Living wills: A living will is a document that allows you to specify your healthcare wishes if you suffer an accident or disability and can’t consent to treatment yourself.
  • Holographic wills: This is written and published by the deceased without being witnessed. Not all states accept holographic wills as valid.
  • Oral wills: This is a spoken form of a will, where the testator. Most courts do not recognize oral wills as valid.
  • Mutual wills: This is created by married and committed couples to ensure that assets can be transferred to a spouse or life partner after the death of one party.
  • Pour-over wills: These allow your assets to pass to a previously created trust.

How to Write a Will?

Adults with family and property should consider will planning in case of sudden death. Planning an estate can be a tricky business. Before you write your will you should prepare and the following:

  • Consider whether you will have dependents such as children who will need care and guardianship after your death
  • Create a list of all your assets and liabilities that will need to be distributed
  • Decide which members of your family you wish to bequeath parts of your estate to
  • Pick an executor to manage the distribution of your property after you die

When you write a will give careful thought towards the language you use. Make sure that you express your wishes clearly and unambiguously. The writing in your will must:

  • Give explicit instructions about who should receive what
  • Explain how the transfer of assets must be made in detail if necessary (the will can also be paired with a letter of instruction)
  • Clearly nominate who will be guardian to your children

It is essential that the final will is apparent in its instructions. Any discrepancies in these details could lead to legal disputes amongst your beneficiaries. If you are appointing guardians of children you should also discuss your plans with the parties involved first.

When the will is written, it will need to be witnessed and in some states notarized, in order to be considered legally valid. You should find at least two disinterested witnesses (i.e. someone who won’t benefit from your estate in the future) who can attest that you are sound of mind when signing the final document. They will also need to sign and confirm the will.

You can also elect to have the will notarized if this is not a legal requirement in your state. This can be especially useful if you have any worries about the validity of the will being legally challenged at a later date.

Frequently Asked Questions about Wills

  • Do You Need a Lawyer to Write a Will?

    It is not always necessary to have your will prepared by a lawyer. It is perfectly possible to write your own will using a pre-designed template.

    However, if your situation is particularly complicated The preparation of your will, in this case, may require a greater level of expertise. In these situations it might be worth seeking the advice or services of a trust and estates lawyer. This could be in situations such as the following:

    • You want to disinherit a descendent
    • You’re worried about a legal challenge to your will
    • You need to provide for pets after you die
    • You wish to give long term property instructions after you die

  • What is Probate?

    Probate is the legal process that deals with the settling of estates for tax purposes and provides a public record on their contents. Probate works differently state-by-state, however, most states will have similar rules on the key personal and real estate assets being distributed by the deceased.

    What needs to be declared during probate:

    • Real estate
    • Cash and bank accounts without Transfer on Death (TOD) instructions
    • Retirement accounts without TOD instructions or designated beneficiaries
    • Assets held as tenants in common
    • High-value personal property

    What doesn’t need to be declared during probate:

    • Trusts
    • Retirement accounts such as a 401k
    • Insurance policy proceeds
    • Assets with joint ownership and rights of survivorship
    • Financial assets with TOD instructions