Wills
Do I need a will?
A last will and testament is a written expression of a person’s wishes as to the disposition of his or her property after death. Preparing a will ensures that your property passes to others according to your wishes rather than according to state law. Each state has its own rules to determine who can claim the property of a person who dies intestate (without a will). By preparing a will, you, rather than the state, will control how your estate is to be distributed. Your estate includes all of your personal property and any real estate which you own.
If you already have a will, you may, from time to time, want to update it. A will can be updated by either drafting a new will or by drafting a codicil, which is an addendum to your existing will. A new will should be drafted if the changes you want to make are extensive. A codicil may be appropriate if the changes are minimal. In drafting a new will or a codicil, you must adhere to all of the required legal formalities.
What should I consider in writing a will?
It is a good idea to obtain legal assistance when drafting a will to ensure that your wishes are carried out and to guard against potential legal challenges by anyone disappointed with its terms.
In order for a will to be valid, it must meet certain legal formalities. These include:
- Valid witnesses to the signing
- Designation of an executor
- Naming of beneficiaries
You must sign your will in the presence of witnesses who verify that you were of sound mind and understood the basic concept of a will when you signed it in front of them. The witnesses should not be people who are going to be receiving something from you under the will.
The person in charge of handling your estate is called the Executor. You should decide with great care whom you choose as your executor. A will directs your executor to distribute your property in accordance with your desires. The executor has a duty to preserve the property or assets of your estate, pay your creditors, and distribute the estate property to the beneficiaries whom you have named. An executor is not responsible for paying debts with his or her own funds, but only with the funds from your estate. Your executor should be someone whom you trust will carry out your wishes, who will be responsive to your beneficiaries, and who can manage your estate.
The person or people to whom you leave your property are called Beneficiaries. You may leave all of your property to one person or to several persons jointly. You may leave your property in designated proportions (such as one-third to one person, two-thirds to another) or you may designate exactly which items are to go to which people.
How can I safeguard my will?
You have a number of options as to how you can safeguard the original copy of your will. You can:
- Leave it with the lawyer who prepared it, where it will be kept in your case file
- Bring it home and keep it wherever you keep your other important papers
- Store it in a bank safe deposit box (but be sure to arrange for someone to have access to your box after your death)
- Have your executor keep it in a safe place
In any event, you should be sure your executor knows where the original copy of your will is. You may want to include a note with your important papers at home that indicates who has the original and how to contact that individual.
What happens to my will after I die?
Depending on the laws of the state in which you reside, the Executor generally must file your will with the Probate Court. Administration or probate of an estate can range from relativity simple to extremely complex. Some states have a “small estate” procedure for settling simple, undisputed estates valued at less than a predetermined amount. In such cases, the executor can probably settle your estate without a lawyer. It is the executor’s responsibility to ensure that funeral costs are covered, creditors are paid, and the property is distributed to beneficiaries according to your wishes expressed in your will.