Last Will and Testament-Does It Really Matter if You Don't Have One?
None of us like to think about sitting down and making a will, but unfortunately, none of us are guaranteed a tomorrow. By avoiding the issue, you may be leaving numerous legal problems and disputes for your survivors after your death. When you make a will, you help ensure your belongings won't wind up in the wrong hands, and that whatever is left will not be eaten up by extra costs and expenses. A last will & testament can also make sure other final wishes are carried out, such as guardianship for your children, funeral wishes, burial or cremation instructions, and more.
What is a Will?
A will is a legal document used to distribute your assets (personal property, real property, intangible assets) to your named beneficiaries. It allows you to name an executor who will handle your estate and see that all the details of your last wishes are carried out and follow legal requirements. A will may help prevent the estate administration process from forcing the sale of cherished family heirlooms and irreplaceable items. Typically, to create a legal will, you must sign it in front of two witnesses. The witnesses must sign after your signature to vouch for your sound mind and freedom from undue influence.
A last will and testament is crucial to make sure that the final wishes of the deceased are respected. The only way to ensure that the proper heirs inherit the right property from your estate in the probate process is to make a will. Taking the time now to prepare a will can prevent unintended consequences that often occur if you avoid creating a will.
What is Required to Make a Valid Last Will?
The following are legal requirements:
- The will maker's sound mind-the will must be made with freedom from undue influence; an act done freely and knowingly.
- The testator's signature before the witnesses.
- Witnesses-generally, two witnesses are required to witness the will.
- One or more heirs (devisees, beneficiaries, legatees) must generally be clearly named.
The following are basic terms recommended to be included:
- A revocation of any prior wills and/or codicils should be included.
- An executor should be named to make sure the estate will be admitted to probate, manage the distribution of the estate, collect debts, pay creditors, file any federal estate tax and other tax forms due, etc.
- A residuary clause should be included to specify how any later acquired or unspecified property should be distributed.
- A testamentary trust can be created, in which case a trustee is also named.
- A guardian may be named for minor children living at the time of the testator's death.
Who Needs a Will?
Whether or not you are a single person, you are married, have children, or living with a significant other, you can't assume that those you care about are sure to inherit your estate when you are deceased. Here are just a few examples:
- If your significant other isn't your spouse, he or she may be evicted from the home you shared by a long-lost relative.
- If both parents of a child die without a will, the court will name a guardian to take custody of the minor children and handle their inheritance from the parents' estate. Even worse, if your estate recovers a large settlement in a wrongful death lawsuit after you die in a car accident, it may be taken over by the state if you didn't write a will.
- You separated from your spouse years ago, but never got a divorce and now he or she is able to disinherit those closest to you.
A will is a legal document that allows a person to make sure their final wishes are fulfilled. By completing a will, a person gives instructions on how to distribute their assets among the intended beneficiaries, and makes other final wishes. A person may leave a bequest in any manner desired in a will, leaving everything to be distributed to one beneficiary or to be equally divided among them, or in any percentage stated. Testators may want to leave everything to a surviving spouse, and/or to leave property to their children, or not. When there is more than one heir, property is not required to be divided among them in equal shares.
A will also allows a person to choose trusted individuals to act as their personal representatives, in order to manage the estate, close up affairs, and distribute it according to the testator's stated wishes. Without a will, a person may end up having their property distributed by a stranger chosen by the court according to their state's rules of intestacy, or it could escheat to the state. This may cause much more expense and delay in the administration process than a will would require, and the property may wind up being distributed against the deceasedís wishes.
Some other benefits of making a will include:
- Making a will is the only way you can choose trusted persons to act as your personal representatives, who will manage your estate and distribute it as you would have wanted.
- A will may also create a guardianship for any surviving dependents to provide for their care according to your wishes.
- Many USLegal will forms allow you to give personalized instructions for your burial or cremation, funeral wishes, and anatomical donation preferences, if any.
- A will also can minimize or avoid federal estate tax and other tax liabilities that may be due without one. A properly drafted will can greatly decrease estate taxes.
- A will can spare your family from the expense and delay of intestate distribution probate procedures and prevent family conflicts.
- A will can create a testamentary trust to make sure any assets not mentioned in the will can be distributed according to the testator's wishes.
By failing to a create a will, a deceasedís property will be distributed according the state intestacy statute, or may be forfeited to the state. This may create more expense and delay than if there is a last will, and can also mean that your probate estate may wind up in unintended hands. Your estate might wind up being administered by a complete stranger selected by the court. The only way to make sure your final wishes for your family and property are followed is to make a Will. You owe it to yourself and your family to give yourself the peace of mind of knowing your estate planning needs are met by preparing a will form.
Life Documents Planning Package
The documents in this package includes a Will, Living Will, Power Of Attorney and other forms
Last Will and Testament Forms Package
Includes a Will, Estate Planning, and Other Forms.
Mutual Wills Package
Includes mirror wills for you and your spouse. (Also available in package above)
Do I Need to Make A New Will if I Move to a New State?
Q: I made a will a few years ago while I lived in New
York. I now live in California and am wondering if I need to make a will again
for the new state?
A: It is always good practice to review your will
periodically to see if updates are needed. While one state will generally
recognize the will of another state as long you create a will
that complies with the laws of the state where it was made. However, if
the move is due to an event like divorce or involves the purchase of a new
home, it is time to take a look at updating your will.
What is the Best Way to Make Changes to a Will?
Q: I need to update my will with some changes and am
wondering whether I should make a new will or can I add notes to my old will?
A: The answer will depend on the nature of the change. A
codicil may be used to make minor corrections, but where there is a significant
change in assets, or the way the property is to be distributed, it is often
preferred to create a new will to avoid confusion among multiple documents and
reduce the risk of challenges to the will. A codicil is best only used for
minor changes, such as the death of an executor or birth of an heir. Generally,
the fewer documents to be interpreted together the better. Witnesses must sign
the codicil in the same way as a last will testament.
What is a Mutual Will?
Q: What is the purpose for a husband and wife to make a
A: A mutual will is typically made between a married couple,
where each makes a reciprocal will, agreeing to how they want to leave their
property according to a mutual agreement on how each is to distribute their own
estate at death. It is not necessary that the couple agree to leave personal or
other property in equal shares or to be equally divided among their children a
certain way. The promises contained in a mutual will do not become binding on
the surviving spouse until the first spouse dies. Until that time, either
spouse may change the will. However, mutual wills may include an agreement not
to revoke a will or else the party is in breach of the contract to dispose of
property as agreed through the wills. A court may impose a constructive trust
on the property in the case of such a breach.
Can We Force an Executor to Show Us a Will After Someone
Q: Our father recently passed away and the executor refuses
to disclose the details about his estate. What are our rights as children to
see the will?
A: One way of having the will produced is to file a petition
asking the court for administration of the estate and by asking that you be
named as administrator. The petition is filed at the probate court in the
county where the deceased resided at the time of death. That will usually force
the will to be produced in court and once it is filed it becomes a matter of
public record and you can see all the details. If it has not yet been filed,
you can force the filing by starting an action for an administration of the
estate and by asking that you be named as the administrator.
How Do I Prove a New Will Was Written?
Q: My father made a will in 2002, but had it changed in
2007. However, the copy of the will left with my mother got lost and we donít
know how to find it. What can be done in this situation in order to probate the
A: Some states allow a will registry to be created at the
courthouse, so you may try inquiring at the local probate court whether they
maintain such a registry. Other locations to look include a safe deposit box
(this may require a court order if you didnít sign the signature card), under
mattresses, between book pages, car glove areas or trunks, or other private
safes. If you donít know the attorney who drafted the will, you might look for
old checks made out to attorneys or legal firms. You can also ask friend of the
deceased who may have acted s witnesses whether or not there was mention of
where the will was kept or the attorney involved. An address book may be a good
resource for people to contact.
Can the Same Person Be Named Executor, Trustee
and Beneficiary In a Will?
Q: Is it possible for me to prepare a will and name the same
person as executor, trustee, and beneficiary in my will?
A: Yes, one person may be executor, trustee, and beneficiary
in a will. It is similar to the way roles may be shared under a trust
agreement, where the same person can be both grantor and trustee, grantor and
beneficiary, trustee and beneficiary, or even all three.
What Happens to a Child's Share of an Inheritance if the
Q: My sister left a will and gave a share of her real
property to each of my children, but one of them has since passed away. What
happens to the share of the deceased child?
A: There are often terms in a last will and testament
dealing with how a lapsed child's share will be distributed. Commonly, the
property of a lapsed heir will become part of the residuary estate and be
distributed according to the terms of the residuary clause in the will.
Do I Need a Trust if I Have a Last Will?
Q: I already have a last will. Do I need to make a trust
A: The answer will depend on all of the circumstances in
your situation, but there are living trust and testamentary trusts.
Testamentary trusts are created in a will and take effect when you die. They
can be used to manage the distribution of assets that werenít specifically
dealt with in the last will and testament form, such as property you acquired