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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 express 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
- Holographic wills
- Joint wills
- Living wills
- Nuncupative wills
- Online wills
- Pour-over wills
- Simple wills
- Testamentary trust wills
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.
3 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 it meets three conditions. If it doesn’t, then you pass with an estate intestacy, which follows its own default procedures as well.
Below, here are the three conditions that make a will valid in the United States:
Condition 1. 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.
Condition 2. 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.
Condition 3. 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.
How 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.
- Step 1 . Make a list of your distributable assets
- Step 2 . Write down the names of your heirs and assets they receive
- Step 3 . Name a personal representative to manage the estate, like a spouse
- Step 4 . Find a last will and testament sample to guide you through writing it
- Step 5 . Print a copy of your final draft for signing
- Step 6 . Find two witnesses and visit a notary public for signatures
- Step 7 . Scan a digital copy of your will and make several hard copies
- Step 8 . 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.
Image via Pexels by Ravi
What to Never Put 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:
1. 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.
2. 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.
3. 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 .
4. 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.
5. 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
6. 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.
Get Help With a Last Will and Testament
Every state has a unique set of probate rules it follows. Working with a legal professional ensures that you follow these rules while honoring your final wishes. Estate planning and probate lawyers in your state can help you draft your last will and testament and finally achieve peace of mind. Post a project in ContractsCounsel’s marketplace to receive free bids from vetted lawyers.
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