A will is a document that deals with the distribution of an individual’s property after death. In other words, you compile all your wishes about the distribution of your assets and appointing a guardian for your minor children. However, if you do not prepare a will and die, these wishes may not be fulfilled. In addition, your family or heirs needs to take extra efforts to settle down all your affairs. Therefore, this is an important document for giving your property and minor children legal protection before you leave.
Although a will can be effective at many aspects depending on the wishes that you have documented, it is important to note that no document can cover all the problems that occur after your death. Read below to know the key points that give you a basic idea about this document.
- A will is a legal document that takes your properties and legally allows them to be distributed after your death. Plus, it let you appoint a guardian of any minor children.
- This document will save your family members from unwanted economical problems that occur after the death of the head of a family.
- A will document can be prepared by yourself, but it is preferred to have a witness during the preparation of this document to avoid any misunderstanding or objection later on.
- Consider taking the help of an estate attorney and trusts in order to keep all information intact.
Why it is important to have a will?
There is a common myth that only wealthy people or people who attain high valued assets need this document. Here are some important points to tell you the importance of a will and why you should have it.
- It helps you clear the process of the distribution of your properties and other assets among your family members. It’s up to you to decide who gets what and how much.
- You can keep your assets away from the people that are no longer important to you like your distant relatives.
- A will clear the path of succession on your property by the people you mentioned in the document. It saves time, money, and energy for your heirs.
- This document helps you to save the money of your assets and properties from taxes. To avoid estate tax you can donate some money to charity or can give gifts.
Why a written, witnessed will is preferred?
As mentioned earlier, you can create a will by yourself but your family member might end up with testimony problems later. To avoid this challenge you must create a ‘Testamentary will’ which means that you must prepare this legal document in the presence of a witness under the guidance of an estate attorney or trusts. It is the best way to structure your wishes and circumvent unnecessary problems for your business associates and family members.
Other types of inheritance will
Although a testamentary will is the best option several other types will cover different aspects of issues that might occur at the time of adversity.
Holographic wills
Holographic wills are those legal documents that are prepared by a testator without a witness. In short, you have documented all your wishes by yourself without a witness. Normally people avoid this will but it becomes necessary at an adverse time for instance, when a testator is in a dire situation and has no witnesses while preparing a will.
Although this type of will is not accepted in few states, a testator needs to fulfill some basic requirements like the proof that the holographic will was written by the testator and he/she was in the right state of mind to carry out this work. However, this document still lacks authenticity at the time of the legal process. Various problems may occur later without a witness.
Oral Will
This is not widely acknowledged due to the lack of its authenticity. A testator tells their wishes orally before a witness. No documents or records are maintained in this will. The court generally does not permit oral will.
Pour-over wills
Pour-over will is another type of will that allows you to create a trust in which your properties and other assets flow. For more information read ‘Wills and Trust’ given below.
Mutual Wills
This type of will is generally prepared for the committed or married couples in which both the parties are bound with terms and conditions decided mutually. In case one party dies, the other party needs to carry out the legal process written in the document.
Mutual will make sure that the children of a deceased parent take over properties and assets rather than a new spouse. Plus, this document must be prepared with the help of professionals because contract law is different in each State. Note that joint will and mutual will are different legal documents though they sound the same.
Things included in a will
The major point for which many people prepare a will is the distribution of liquid assets, fixed assets, and prized possession among the family members. In the case of a business, it let you decide who will take over your business possessions and when after your death.
Furthermore, it is not just limited to your family members or business partners but you can write out a will in the name of any institution or organization that you wish to take over your assets after you’re gone. You can donate your assets to charity also. Therefore, a will is something that assures you that your wishes will be carried out in compliance with the terms and conditions stated in the document.
Although a will covers every kind of asset certain affairs may not be covered in this document. For example payouts from the life insurance policy because the policy is a contract between insured and insurer which is why the payouts are only given to the beneficiary. However, you can specify the investment account in your will as ‘transfer on death’ in order to transfer the funds or investments after your death.
There is one exception: In case the beneficiary deceased before the testator then the policies or investment amounts are converted into estates and those assets are distributed among the heirs mentioned in the will. Failure to this the case is taken to the court probate which handles the estates, will, and similar matters.
Many states have community property and elective–share laws that are used by the people to disinherit their spouses from procuring assets. The states specify the proportion of these assets which falls between 30% and 50%. However, if a portion of such properties are in the name of the surviving spouse amounting to more or less than a proportion of what the State has specified then the court has the power to override a will. Nevertheless, the court allows the wish of the testator regarding the guardian of minor children in the event of their death.
Wills and Trusts
Even if a testator has trust, a will is helpful. Trust is a legal mechanism that allows the testator to put terms and conditions regarding the distribution of properties and other such assets. It is often used to minimize the estate taxes and gifts because most of the trusts are prepared in respect of a piece of property or life insurance rather than the total amount of assets.
In addition, a trust is established to benefit the underage person. The trustee will be capable of possession of the trust after attaining a certain age or when they become capable of handling the possessions.
You can also have a revocable living trust which allows you to keep the bulk assets but you still need push-over will. To appoint the guardian of your children after your death, push-over will make sure that all your assets are trusted with a will even if you failed to mention the beneficiary of some of those assets.
Nonetheless, if you failed to place any of your assets in the name of the trust, it is subject to probate. That means your assets will be given to the heirs who might not be your choice of beneficiary.
Important: A will need to contain the number of assets similar to the amount specified by the state to the spouse otherwise the will is overridden and the mandatory amount is written in the name of surviving spouse.
Consequences of not having a will
In case you die intestate which means without a will then all your properties and other assets are distributed according to the terms and conditions stated in the law.
In such case community property and estate–share law comes into consideration which is mentioned above. These two laws distribute half your assets to your spouse and another half to your children. This results in the sale of the family house and other assets which could be difficult for a living spouse who may have counted on your assets to maintain a standard of living.
In addition, without a will, it becomes difficult to appoint a guardian for your minor children. In this case, courts decide a representative of your minor children.
Furthermore, without a will, you may face tax consequences because a properly prepared will help you to reduce the estate tax. As of 2021, the citizen of the U.S. needs to file an estate tax return only if the individual estate equals $11,700,000 or more.
How to prepare a Will?
Begin by compiling all your debts and assets and make sure that you include family heirloom, contents of deposit boxes, and other such important assets that you want to transfer to a particular entity or a person.
You can also add properties and assets which you want to give to particular heirs. Keep a record of these assets in a separate document known as a letter of instruction attached to a will. Make sure to legally bind the letter of instructions to your current place of living because many states refuse to recognize them.
You can write the letter of instructions in a more informal way than a will and can use specific details that will eventually help your executor settle the estates including burial instructions, account numbers, and passwords. Moreover, you can mention other addenda like a medical directive, a living bill, or a power of attorney that aid in smooth proceedings in the court if the person becomes mentally or physically incapacitated.
Keep note that if a couple failed to prepare a will then they might end up settling down in a single document covering both of their wishes. We recommend you avoid this situation. Many estate planners do not support a joint will and several states don’t even acknowledge such will. It is in the interest of both the parties to prepare separate will even though both wills end up looking similar.
How you can prepare a will and prove its validity?
It is necessary to hire a professional in order to create a will. If you are capable of preparing one by yourself then few software companies can help you do so. You must have the basic idea of writing a document and once it is done, you just need a witness who is two adults who know you and are sound-minded.
It would be preferable to select a witness who is neither a beneficiary nor a financial issue in your will. Plus, you must prepare two or more witnesses because some states demand more than one witness. Few states demand for attested will so make sure to put the location of your current living.
There is a term known as a self-proving affidavit in which a witness is presented as evidence in court to approve your will. It is a must that you take a reliable witness and sign the documents in the presence of a notary.
Choose an Executor for a will
You need to select a living person as an executor of the estate. That person can be your spouse, close relative or friend, or an adult child. Plus, you can name joint executors like your attorney and your spouse.
The probate court advises the executor to adhere to the terms and conditions mentioned in the will and carry out all the wishes written in it. Therefore, it’s best to hire financial and legal expertise to take your business if you think a will is complicated to manage by yourself. Also, ensure that those professionals are familiar with your state’s laws. Furthermore, you can take help from the state bar association to hire a suitable attorney.
The best part of a will is that it empowers your attorney to take care of bills and also deal with debt collectors. In order to do that choose the words wisely in the will which benefit the attorney and give them a leeway to superintendent your bills issues that are not underlined in the will.
Where should you keep your will?
To start the proceedings of your estate the probate court asks for the original document of will and it is important to keep your document safe and store it where you can access it easily. You should not keep it in your bank deposit box or any other place that needs court permission to gain access. A fireproof and waterproof place in your house is well enough to keep the documents.
Furthermore, make certain that you inform about the safety box in which you stored the documents and it would be best to provide keys or password of that box. Also, you can provide a signed copy to your attorney and executor if by chance you lose it. However, a court rarely recognizes your duplicate copies of documents. So keep your original documents safe.
How you can change a will?
A will does not need to be updated with time. It is applicable till the time of your death regardless of the year of its making. However, you must check your wishes and conditions in a period of two or three years because with time financial and family conditions change. For example, you may not have any minor children, but your wish for a guardian might be written in a will.
You can change your will and it’s an easy process. You either prepare a new will and replace it with an old one or can add a new will by using a codicil amendment. Foremost you must be sound-minded when you change the will.