Last Will and Testament: Steps and Conditions to Make it Valid
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A last will and testament is a legal document that outlines a person's instructions on their specific property and communicates their final wishes to everyone. The testament can address issues with dependents, account administration, and financial interests. Let us learn more about the important aspects of a last will and testament below.
Last wills and testaments determine how probate courts treat your estate upon your passing. Drafting and signing a will is an important matter to address during your lifetime since there are adverse effects of not having one. You can make probate proceedings easier on your surviving family members by finalizing your will as well.
The blog post below details everything you need to know about having and writing a last will and testament:
What is a Last Will and Testament?
A last will and testament, also known as a will, is a legal document that expresses your final wishes to the probate court when you die. They allow you to leave your assets to heirs as well as name guardians for minor dependents. Probate courts will use your last will and testament when closing out your estate.
There are several types of wills, including:
- Deathbed wills. A will created while the person is approaching death.
- Holographic wills. Instead of requiring witnesses, this type of will must be hand written in the person’s own handwriting.
- Joint wills. A will written by two or more people, often used by married couples, that acts as a will for each of them.
- Living wills. Also known as an advance healthcare directive. Specifies what actions should be taken if you are medically no longer able to make decisions for yourself.
- Nuncupative wills. A will given verbally by a person who is too sick to execute a written will. Only legal in certain jurisdictions.
- Online wills. A will created with the help of online tools.
- Pour-over wills. A will that puts your assets into a trust, which already existed during your life, to be distributed by the trustee.
- Simple wills. A will that simply identifies who will inherit your belongings.
- Testamentary trust wills. A will that puts your assets into a trust that will be created upon your death.
If you don’t possess a signed last will and testament, most states default to per stirpes probate laws. Per stirpes probate laws are the default probate laws of your state, which means that you or your family have no control over the outcome of your estate’s closing. For example, a financially irresponsible child could suddenly receive a large sum of money that you would have never given them if you were still alive.
Three Conditions to Make a Will Valid
One primary function of a probate court is to establish the validity of the living will . The probate judge will carry out the instructions within your last will and testament as long as it meets three conditions. If it doesn’t, then you pass with an estate intestacy, which follows its own default procedures as well.
The exact conditions for a valid will vary from state to state, but there are some core requirements shared by many states:
- At Least 18 and of Sound Mind: You must be at least eighteen (18) years old to create a will. The other element of this condition is that you are also of sound mind. This specification’s purpose ensures that an individual is competent to decide how their assets should be divided upon death and not manipulated by anyone seeking to profit.
- Put in Writing and Signed: You must sign your written last will and testament before your passing or by someone who had the authority to sign for the will’s maker, such as a power of attorney. Additionally, it’s essential to sign it in the physical presence of two witnesses. Handwritten wills are perfectly valid in many states and can be easily identifiable as valid when written in your penmanship.
- Stamped by a Notary: If a will is notarized at the time of its execution and witnessing, it’s considered self-proving. On the other hand, unnotarized wills aren’t necessarily validated. Unfortunately, a missing notarial seal may lengthen the probate process due to the added steps for authentication.
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Steps to Write Your Last Will and Testament
As far as vital documents go, your last will and testament is at the top of the list. This legal document will eventually serve as the basis for your estate closing strategy. It makes a difference between a smooth estate settlement with the property going to the right people and caring for minor-aged children.
While consulting with an estate planning lawyer is recommended, many people prefer to do it themselves. The eight steps below will provide you with the information you need to draft a valid will:
- Make a list of your distributable assets.
- Write down the names of your heirs and assets they receive.
- Name a personal representative to manage the estate, like a spouse.
- Find a last will and testament sample to guide you through writing it.
- Print a copy of your final draft for signing.
- Find two witnesses and visit a notary public for signatures.
- Scan a digital copy of your will and make several hard copies.
- Place the original in a secure location, such as a safe deposit box.
Review your last will and testament every two or three years and make changes as necessary. If you need to make changes, you will have to restart the formalized signing process as outlined in Step 6 of the preceding list. Ensure that you let someone close to you know about the existence of the will, such as a spouse, adult-aged child, sibling, or parent.
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Never Include These Items in Your Will
You should never put certain assets and provisions in your will, including jointly owned property, bank accounts, and pet provisions. If you want to specify these terms, you should consider drafting a living trust and a durable power of attorney (DPOA) for a complete result.
Here is more information about items you should never put in your will:
- Joint Tenancy Real Estate: Jointly held property automatically grants the other party a right of survivorship. Regardless of what the will says, your share of the property passes directly to the surviving joint tenant upon your death. There is no need to include joint tenancy real estate provisions in your will.
- Beneficiary Life Insurance Policies: Insurers automatically distribute life insurance proceeds to the beneficiary, much like joint tenancy real estate, upon your passing. Proceeds from retirement plans, such as pensions, IRAs, or 401(k)s, are separate from the probated estate.
- Funeral Arrangements: Funeral arrangements are generally one of the first items on the agenda following someone’s death. As such, it doesn’t make sense to discuss funeral plans at probate proceedings, which can take place several months later. Instead, you can specify funeral arrangements in an advance healthcare directive.
- Illegal Bequeathments: While it’s hard to believe, some people try to leave illegal assets to heirs, including drugs, illegal game trophies, and illegally operated businesses. They may also try to impose illegal conditions upon the heir to receive their distributed shares. If this situation arises, then an invalidation of a will may occur, and a probate judge will oversee the closing of your estate instead.
- Special Needs Arrangements: It’s possible to make arrangements in the event of your incapacitation. However, a will isn’t the appropriate document for executing such a legal strategy. Certain trusts, such as special needs trusts , are explicitly designed to address the management of a disabled person’s unique needs. You can also increase decision-making capacity by adding a medical power of attorney or limited power of attorney.
- Pet Provisions: Animals lack the legal capacity to acquire property. As such, many loving pet owners leave the pet with care instructions. However, a will doesn’t convey these needs, and a living trust will better suit pet provisions.
Wills vs. Last Will and Testament
A last will and testament is a will and vice versa. People can use the terms interchangeably. There are different types of wills, but they are all generally referred to as the same document.
Benefits of a Last Will and Testament
A last will and statement provide several benefits. However, everyone must be aware before proceeding with the legal document.
- Provides Help of a Designated Executor : One can designate an executor in the will who will manage the estate's affairs and care for the possessions until the estate's assets are transferred to new owners following the conclusion of probate.
- Offers Flexibility to Choose a Guardian: A person can name a guardian in their respective will if they cannot raise the children until the latter become responsible adults.
- Establishes Trust: A will can also establish a trust that helps safeguard care for a child or a loved one. Most of the time, such a person cannot manage an inheritance independently.
- Aids in Estate Planning : Will-based estate planning can reduce tax repercussions. Thus, it aids in protecting more assets for beneficiaries.
- Makes Charitable Contributions Easier: It facilitates the process of leaving a legacy by specifying charitable donations and ensuring that the testator 's philanthropic wishes are fulfilled.
- Enables Asset Protection : By including provisions in the will, the testator can protect certain assets from being sold or misused until specific conditions are met, such as a beneficiary reaching a certain age.
- Expresses Wishes for Personal Belongings: It allows the testator to express their wishes for the distribution of sentimental or personal belongings, ensuring they go to those who will cherish them.
- Caters to Dependents: A will enables the testator to provide for dependents who may not be legally entitled to inherit, such as stepchildren or unmarried partners.
- Enables Family Business Succession : It can facilitate the smooth transition of a family business by specifying who will take over its management and ownership.
- Supports Special Needs Individuals: A will allows for the creation of a trust to financially support loved ones with special needs without jeopardizing their eligibility for government benefits.
- Expresses Funeral and Burial Wishes: The will can be used to express the testator's wishes regarding their funeral arrangements and burial preferences.
- Reduces Probate Delays: Properly executed wills can expedite the probate process, allowing beneficiaries to access their inheritance more quickly.
- Facilitates Estate Administration: It provides a roadmap for the executor, simplifying the process of administering the estate and ensuring that the affairs of the deceased are handled efficiently.
- Protects Minor Children: The testator can appoint a guardian for their minor children, ensuring they are cared for by someone they trust in the event of their untimely passing.
- Secures Unmarried Partners: If the testator is in a long-term unmarried partnership, a will allows them to provide for their partner financially and ensure they receive assets or support.
- Expresses Wishes for Digital Assets: The will can specify how the testator's digital assets, such as online accounts and social media profiles, should be managed or closed after their passing.
- Helps Minimize Family Conflicts: A well-drafted will can help minimize family conflicts and disagreements by clearly stating the testator's intentions and instructions for asset distribution.
Final Thoughts on Last Wills and Statements
A last will and testament is an essential legal document that gives a person the power to decide what will happen to the estate, how to protect their loved ones, and leave a lasting legacy. With the assistance of solicitors, a person can guarantee that their last wishes are carried out and give their family the support and guidance they require during a trying time by drafting a thorough will. However, drafting a will is not everyone’s cup of tea. So, the person may seek help from a professional lawyer to draft the legal document without any errors or discrepancies.
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Probate
Last Will and Testament
Tennessee
Is a deed of trust enough to prove ownership of a home when a spouse dies intestate in Tennessee?
My stepfather just passed away intestate. He has 2 adult children from a previous marriage. My mother (the widow) does not believe her name is on the property deed, but knows her name is on the Deed of Trust for their home. The home was purchased after marriage, as a couple. They resided together in the home for nearly 20 years. She is worried she will lose their home to intestate succession laws.
Forest H.
It is unlikely that she will lose the home. She has certain rights to a spousal share of his estate regardless of the surviving children or the title to the home. She would certainly benefit from speaking with a local probate attorney who can assist her in protecting her interest.
Estate Planning
Last Will and Testament
Illinois
How often should I review and update my will?
I am asking this question because I want to ensure that my will is up-to-date and reflects any changes in my life circumstances, such as marriage, divorce, birth or adoption of a child, or changes in my financial situation. I am also interested in understanding how frequently I should review and update my will to ensure that my assets are distributed according to my wishes in the event of my death.
Talin H.
You basically just answered your question. You should review and update your will whenever a major life event happens that might influence how your assets are distributed in the will. The rule of thumb is the addition or subtraction of a family member, or addition, or subtraction of a major asset like a home purchase.
Estate Planning
Last Will and Testament
Florida
What is a will, and why is it important to have one?
I am a married adult with two children and I am looking to secure my family's future. I am concerned about what will happen to my assets and my family if something were to happen to me. I want to make sure that my wishes are respected and that my family is taken care of, so I am looking to learn more about wills and how they can help me.
Diane D.
A will allows you to select the persons who you want to receive what you own when you die. Without a will, the court may step in and distribute your assets according to your state's law. With a will, you control what happens with your property, and you can leave specific property to specific persons, and you can appoint specific persons to manage and handle distributing your property. Having a Will can save your heirs significant expense during probate and prevent feuding among them.
Family Law
Last Will and Testament
Oklahoma
I was in a common law marriage to this man for aprox 8 years in oklahoma. He suddenly passes away unexpectedly. During our relationship we purchased some property put a travel trailer on it. Moved a bldg which we added on to for laundry room and storage. We built fences worked the land together. The vehicles / 3 and travel trailor were in both our names. Bank accounts were only in his name. Savings account etc. The land was only in his name. He had an old will I wasn't part of that reading don't know what went on. He had no living children . Had 2 grandchildren that was taken very well of with his life ins. What am I to get legally. WE live in oklahoma.
Common law marriage spouse suddenly dies. He had no living children or parents. One brother 2 sisters and 2 grandchildren. One being an adult now I think. What do I legally get to keep?
Alan B.
Once a common law marriage is recognized, your legal entitlements mirror those of any legally married spouse. However, you must assert and demonstrate your common law marriage by clear and convincing evidence. Based on the details provided, this evidence might include, but is not limited to, cohabitation, joint ownership of vehicles and travel trailers, a long-term and exclusive relationship, and presenting yourselves publicly as husband and wife. In summary, under Oklahoma law, a common law marriage affords you the same rights as a traditionally married spouse, provided that you can substantiate your claim with clear and convincing evidence. As to what you would be entitled to, should you find yourself excluded from the will (as it appears you were), it would be within your rights to petition for the reopening of the probate process to claim your spousal share. If there was property outside of the will that needs to distributed, that may also need to be submitted for probate. Keep in mind that entitlements and the process to claim them can vary significantly based on the specifics of each case. Determinations on how to proceed are always fact-specific, and an Oklahoma lawyer specializing in family and estate law can assist you in getting what you would be entitled to as a common law spouse.
Estate Planning
Last Will and Testament
California
Can I create an estate plan without the help of a lawyer?
I am in my mid-fifties and have recently been diagnosed with a terminal illness. I have a large estate that I would like to be distributed to my family and friends when I pass away. I have done some research and understand the importance of having an estate plan, but I am not sure if I am able to create one without the help of a lawyer. I am looking for more information that will help me make the best decision for my family and myself.
Philip M.
You can certainly go ahead and fill out simple forms to complete some easy estate planning documents like wills, but for more complicated documents like a trust (which is required if you want to avoid probate) it can get a little trickier. Further, anyone can fill in the blanks, but an experienced attorney will be able to explain what the document does and how it meets your wishes best. Hope this helps.
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