Worried about who and how your estate will be managed in your absence? Do you feel someone may try and take your estate away from your family when you are no more? Will there be a family conflict regarding your assets when in your absence? A great way to nip these worries in the bud is to draft a will and ensure your estate goes to the people you intend to leave it to, and there is no scope of conflict. The creation of the will involves many legal concepts that may be difficult to understand for a layman. Hiring an expert estate planning attorney is the best way to simplify the process and draft an airtight will that ensures your wishes are taken care of.
A will, also known as a testament, is a legal document that dictates who will handle manage your estate and to whom your assets will be given after your death. If you die without a will, your estate will be distributed according to the intestate state laws. Wills can be used for a variety of reasons. Although primarily wills are used to manage assets, they can also be used by people to articulate their most heartfelt feelings towards their friends and family. Will is a great tool to ensure your assets are transferred efficiently to your survivors or the person you intend to give your estate. It is an effective tool to ensure your loved ones are taken care of and do not have to spend additional money, time, and effort to settle your affairs after you are gone.
The person drafting or authoring the will is known as the testator. As a testator, you have the authority to draft your desires on who will manage your estate or get your assets on a legal document and submit them. After your death, a court will follow your will to divide and distribute your assets among the people you choose. However, some legal restrictions can restrict your desires from fully coming into effect. Requiring your heir to commit immoral, wrong, or any other illegal act cannot be set as a condition for obtaining your estate or assets. In the same way, most state laws prohibit you from omitting your surviving spouse or minor children from the distribution of your assets except through a nuptial agreement. Spouses have the right to obtain a fixed percentage of your assets if they are discontented with the will. If you desire to disinherit someone that is legally permitted, such as non-dependent children, you can state it in your will to avoid any confusion or legal challenges.
Generally, most Wills appoint an executor responsible for executing the testator’s wishes when he dies. You can choose a relative or anyone you personally trust to be your executor. You must inform the chosen person for them to handle the responsibilities effectively. The person you choose will be responsible for collecting debts you were owed at the time of death, filing taxes, handling your property, managing your assets, and filing the court documents. The estate mentioned in the will is distributed to the devisee or beneficiary. These are your loved ones that you intend to leave your assets and estate to.
Wills can be simple long-form documents or volumes of pages describing the distribution and handling of assets. The choice of a will should be made based on your preferences and the magnitude of assets and estate you own.
Simple wills are used when a testator has uncomplicated assets that are only required to be distributed from the estate to beneficiaries. The process simply involves typing a will containing the name of the testator, their marital status, address, and the instructions outlining the distribution of assets. Typically, testators are required to name executors in the will and specify the names of the guardians of minor children, if any.
The enforcement of these wills upon the testator’s death results in the formation of one or more trusts. This type of will specifies the estate that is to be transferred to a trust and names a trustee who manages the assets and distributes it to the beneficiaries based on the testator's desires mentioned in the will. This is a great option if you are planning to moderate the expenditure of your spendthrift heir. Testamentary trusts are also a great way to save on estate taxes, maintain greater control of your wealth, ensure the distribution of assets in your family, and hand over assets to minor children over a period of time.
These wills are created by two or more people together. Generally, couples create joint wills to leave their assets to one another in case either of them dies. A joint will combines both parties’ last testament and will into a single document. This type of will is enforced when either one of the people dies, leaving the entire inheritance to the surviving testator. A joint will also specify the distribution of the estate when the surviving testator dies. These wills cannot be revoked without the consent of all the testators involved. This means that the will becomes irrevocable as soon as a testator dies. Joint wills are typically useful for couples who get married late in life and have children from prior marriages. In this scenario, a joint will ensures that the children of both spouses receive the estate that is decided upon mutually by the couple.
These types of wills are completely different from any other form of will. A living will does not contain instructions or desires about estate and asset distribution. Instead, living will contain the testator’s instructions regarding the medical or healthcare treatment they should receive if they lose their capacity to convey the same themselves. Therefore, these wills are also known as advance directives or directives to physicians. Most people use these wills to specify their preferences regarding the use of life support, tube feeding, pain medication, and artificial hydration. In some cases, living wills are used by people to ensure they receive proper treatment if they lose their capacity to instruct the same.
Living wills can be used by any adult who wishes to relieve their caregivers and loved ones of the burden of making a decision on their behalf. It is also a great tool to ensure you get the medical care you want.
For a will to be legally enforceable and valid, it should comply with certain requirements. If these requirements are not fulfilled, your estate can be distributed under the state's intestate laws, or it can be completely ignored. Although the legal requirements vary from state to state, certain common guidelines to be followed in most states are:
For you to create a valid will, you should be of legal age. In most cases, the legal age is 18. However, there are certain exceptions laid down in other states. For instance, a married person or a person who is a member of the United States Military can create a valid will without being 18.
A testator is required to prove he is of sound mind when the will is created. To fulfill this requirement, you need to prove that you understand that you have drafted a will, understand the effects it will have, understand the nature and extent of your estate, and understand what you are disposing of.
For a will to be legally enforceable, the testator must draft and execute a will voluntarily. This means if the testator has been forced to draft a will under pressure or duress, it would be considered null and void.
A will must dispose of all the property that is a part of the decedent’s estate. This means the will should list all the assets owned by the testator at the time of the creation of the will.
Along with the estate to be disposed of, the will should also mention the way the property is being disposed of. This is done by declaring the name of the person or the entity that will receive the estate. An entity can be an individual, a business, a group of people, or a charity.
It is advisable to list an executor in the will who will carry out the instructions you lay down in the testament. If you do not name an executor, the court will appoint one.
A will is required to be signed in the presence of witnesses, even if it is handwritten. Most states require wills to be signed in the presence of two witnesses. Some states allow beneficiaries to be witnesses, while others require disinterested parties to be present during the signing of the will. Witnesses are required to sign and date the will. In some cases, witnesses sign an affidavit confirming the will’s authentication and their signature.
Hiring an estate planning lawyer can benefit you in the following ways:
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