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How To Make a Will

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Why Do I Even Need a Will?

Most surveys find that more than half of American adults do not have a written will.  Wills are something that everyone is always told they need, but very few people actually understand why it is so important to have a valid will. (1)

At its most basic level, having a will is important for anyone, even including adults without children, to have.  This is simply because, if a person dies without a will (or intestate as the formal legal term for dying without a will is known), then the decedent’s assets are disposed of according to the laws of whatever jurisdiction the person resided in at the time of his or her death.

A person dying intestate means that he or she has no say in what happens to the money, other financial assets and property the person possess at the time of his or her death.   Instead, those assets will be distributed pursuant to the framework set forth in that particular jurisdiction’s statutory framework.

Although this may be fine for most people because they would like to leave their assets and property to whomever the law deems should take ownership of those assets and/or property in the event of an intestate person’s death, it may be against the wishes of someone who wishes to leave specific property or assets to someone who is not included in the normal distribution scheme under a particular jurisdiction’s inheritance laws.

Therefore, having a will is not only important to ensure that you have a say in how your assets and property are divided up at the time of your passing but in making sure that you are the one who is making those decisions rather than your state’s probate statute.

(Note, a will does not avoid probate. Consider a living trust vs a will to provide a higher level of protection and privacy for your estate.)

Simply put, it is important to have a will because it is your money, assets and property and you should be the one to decide what happens to it upon your death.

The Requirements for a Valid Will

Regardless of who prepares the actual document or where the will is prepared, there are a number of basic requirements that must be met in order for a will to be considered legally valid, no matter whether prepared by an attorney, by a non-attorney or by the decedent him or herself.  These requirements depend on the particular jurisdiction you are in but there are some common requirements that cut across all jurisdictions.

First, no matter what jurisdiction a person resided in at the time of his or her death, the will absolutely must be signed by the testator.

Second, ensure that you spell out exactly what your assets or property you possess and which person(s) you want which assets or property to go to.

If you have minor children, ensure to designate at least one person you wish as their guardian upon your death and an alternate guardian if the first person chosen either proves unable or unwilling to perform that task.

Name someone you trust to act as the executor of your estate and make sure that person knows where your will can be found.

Finally, be as specific and detailed as possible.

Handwritten Wills: Are They Valid?

Sometimes a person will want to handwrite his or her own will.  This is known as a holographic will.

Although not all states permit holographic wills (only roughly half of states recognize holographic wills as valid but virtually all states will recognize holographic wills prepared by active duty members of the military), the law will uphold a handwritten will assuming that it meets all of the applicable jurisdictional requirements necessary to make a will valid.

The danger in preparing your own will is that very few people know the right things to say in a will in order to make a last will and testament legally valid.

For example, if someone hand writes a will and signs it without any witnesses present in a jurisdiction which requires that a will be witnessed by two people, then the handwritten will would be invalid because it omitted those details.

Similarly, if a state requires that a will be notarized, but a handwritten will is not notarized, then it may be declared invalid.

Therefore, if you choose to hand write a will, you should first determine whether your state actually permits handwritten wills and, secondly, what other requirements are necessary to make a will valid under your state’s laws.

What Is a Living Will and How Is It Different from an Actual Will? 

Some people may confuse a living will vs a last will and testament.  However, the two are completely different legal documents that serve completely different purposes.

A living will is a written statement that details a person’s specific wishes and desires regarding what medical treatment the person does and does not want in the event the person is no longer able to express informed consent, such as if the person is in a coma, a vegetative state or suffered a severe cognitive event.

In contrast, a last will and testament deals with the disposition of a person’s assets and property upon the person’s death.  The two, although sharing a similar name, deal with completely different issues and one is therefore not a substitute for the other.

If you have a last will and testament, this does not affect your healthcare decisions. The same is true if you have a living will; this will have no effect on how your assets are disposed of upon your death.

Common Mistakes that Lead a Will to be Declared Invalid

The law favors interpreting a will in favor of the decedent’s wishes.  After all, it is that person who has died and is attempting to dispose of his or her assets, which rightfully belong to that person, that is the purpose of a will in the first place.

Whenever possible, therefore, a court will attempt to interpret a will consistent with the decedent’s express wishes.

However, if the will is inconsistent by, for example, attempting to leave a specific asset to a particular person but then leaving the same asset to another person in a different provision of the will, a probate judge will be unable to uphold a will as written.

Sometimes a will also may be deemed invalid because its provisions are inconsistent or conflict with the instructions a person has left with his or her bank or financial institution as to what should happen to a particular asset upon the person’s death.

For example, you may die prior to reaching retirement age and you are divorced at the time of your death.

However, you initially may have set up a retirement account with your ex-wife as the beneficiary and simply never got around to changing the beneficiary when you two had kids or you divorced, then your ex-spouse would inherit the 401k account outside of probate. This 401k plan custodian would distribute the proceeds of your account to your ex-wife because those were the last express instructions that the custodian of that asset was given by you, the account owner, in writing.

A conflicting provision in your will would not have any effect, as ownership of certain assets like this or life insurance policies pass outside of probate pursuant to the last written instructions you gave, which were that the account should pass to your ex-wife upon your death.

Therefore, in addition to having a valid will, make sure to title your assets properly by ensuring the beneficiary designations on all of your financial accounts and life insurance policies are up to date.

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