What is a Will

By January 1, 2019 Blog No Comments

A will, also known as a “last will and testament”, is a legal document that states the final wishes of a person who is dying or already dead. A county court reads the will after the death of the will’s writer and owner and is responsible for making sure that the last wishes of the dead person are carried out as prescribed in the will.

What a will does is leave instructions about what should happen to a person’s property after they die. A will can also be used to name an executor of the property, name a guardian for the deceased’s children and property, decide how the deceased’s debts and taxes should be paid, provisions for pets, and to serve as a backup for a living person’s trust fund.

What a will should not do is put conditions on any gifts, leave instructions for any final arrangements such as the deceased’s funeral, bestow money and property on pets, and to make arrangements for money or property that will be left another way, such as property in a trust or property for which the deceased named a pay-on-death beneficiary. A will also cannot reduce federal estate taxes, avoid probate, leave money for an illegal purpose, and to arrange to care for a beneficiary with special needs.

In the U.S. there are a few legal requirements for obtaining a will. The person in question must know what property they own and what it means to leave it to someone posthumously. In legal terms, this is called having a “capacity” and is also generally known of being “of sound mind”. The person in question must also create a document that names beneficiaries for at least some if not all of their property. The person in question needs to sign this document and have the document signed by two witnesses as well.

Fortunately, wills have many legal protections on the state and federal levels. In the U.S., no state requires that a person’s will be notarized (legalized by a notary). However, the person may use a notarized self-proving affidavit that will make the person’s will easier to get through probate after the person has died. This way, the person’s property does not spend months or even years in probate, tied up and contested in a county court. A few states will also allow the person to make handwritten “holographic” wills, which don’t have to be signed by two witnesses. However, there are limits to these handwritten wills. The handwritten wills should only be used in emergencies, such as when the person does not have enough time to make a formal will because they are on the verge of death. The reason for these limits and strictly emergencies-only policy is because handwritten wills are much more likely to be challenged after the death of the person who the will belonged to, creating months or even years of legal debate and battle which could have been avoided with a formal will.

How does one write a will? One can simply write a will on their own or they can hire a lawyer to write their will for them. If a person chooses to write a will on their own, there are plenty of will writing templates online for their guidance and convenience. Since wills are tricky documents with the potential for many legal challenges after your death, it is important to have a good will writing tool if you choose to write your will yourself and without the help of a lawyer.

A good will writing tool should help a person use clear, unambiguous language to accurately describe their language, in order to avoid confusion and debate. A good will writing tool should also explain a person’s options and help the person decide what they should or should not include in their will.

Some examples include whether the person wants to name several levels of executors for their property, naming multiple executors, naming guardians for their children or pets and property, and creating trust funds for any children should they want them to inherit their property once they reach the age of eighteen.

A good will writing tool will also help the person decide the best time for meeting with a lawyer to discuss and review their will and other options. Even if a person wants to write their will on their own, it is still a good idea to consult a lawyer for help on writing their will.

A person should definitely consult a lawyer if in their will they are considering disinheriting a child or spouse, are concerned that their will may be challenged posthumously, want to control what happens to their property for several years (rather than immediately) after their death, are worried about federal estate taxes, or want to posthumously provide money and care for any pets.

 

About Woven Capital

Aaron Hatch is a Certified Financial Planner and co-founder of Woven Capital, a fee-only financial planning and investment management firm that specializes in helping people balance life, work, and community. Aaron has been quoted in various publications, including The Chicago Tribune, US News and World Report, and the Huffington Post among others. Aaron can be reached at aaron@wovencapital.net