Creating a Legal Will
Types of Wills
Few people are aware of this, but there are actually several types of wills, and you should know which one you are creating so that your will serves you and your family most effectively.
1. Simple Will – This is used for people with a straight-forward estate that requires no complicated handling. A simple will distributes the assets for an individual among as many people as he or she desires.
2. Testamentary Trust Will – This type of will sets up one or more trust funds into which your assets will be distributed after death.
3. Pourover Will – A will that leaves some or all of your assets in a trust already created before death.
4. Nuncupative Will – This is an oral will – spoken, but not written – that is recognized in only a few states. There should be multiple witnesses for this type of will.
5. Joint Will – If a husband and wife want to write a will together, they use a joint will. This is illadvisable for estates larger than $700,000, and can raise severe complications.
6. Holographic Will – This type of will is not witnessed and is written in the testator’s handwriting. Only about half of the states recognize this type of will.
7. Living Will – A living will is not used to distribute assets after death, but to inform medical professionals of your wishes should you become incapacitated or in need of life support. This is a separate document from any other type of will.
Age & Ability
There are laws that dictate whether or not an individual can create a will. In most states, the testator must be at least eighteen years of age, or in some cases, legally emancipated. An emancipated minor can, in some states, create a will, but only if they are serving in the military or legally married.
The testator must also be of “sound mind” to legally create a will. This means that the individual must know that he or she is creating a will, know what a will is, know the people to whom they are leaving their assets, and understand what the assets are that they are distributing. In reality, the question of “sound mind” is rarely raised when it comes to realizing a will, but it has happened.
If you are concerned about your wishes being contested in court, make sure that you have witnesses to the will and that you see a lawyer about the proceedings. Wills are usually contested by angry family members who disagree with the distribution of assets; if you plan to leave most or all of your estate to one person, be sure to see a lawyer.
Wills can also be contested on the basis of fraud if it is suspected that the will was created “under duress.” This means that someone coerced the testator into leaving most or all of the estate to a particular person, and if this is raised, it will be investigated. Again, see a lawyer to increase the chances of your will being realized as you wrote it.
Logistics
The way your will is presented is usually mandated by the state, and you should follow your state’s guidelines when creating the will. Except for Louisiana, most state rules are very similar, and other than minor discrepencies, these are the basics.
1. Type The Will – Some states will recognize handwritten wills, but this is rare. The will should be typed and printed from a computer in an easy-to-read font. It is best to print on high-bond paper so that the will is durable and will last for years. Also, use quality ink so that the words aren’t smudged.
2. State The Purpose – At the top of the will, it should expressly state that this is [Your Name’s] Final Will and Testament. If it doesn’t, then its authenticity can be called into question.
3. Substantive Provision – The will must have at least one substantive provision. The most common of these is the distribution of assets, which names certain individuals as the recipient of your estate. It can also appoint guardianship of children to specific individuals.
4. Executor – The will must name an executor, or “personal representative,” who will be responsible for the distribution of assets and for paying debt and taxes. In most cases, the executor will be an attorney or personal assistant. Always name an executor that you trust.
Witnesses
Most states require at least two witnesses who will oversee the signing and dating of your will. The witnesses should be people whom you trust. Although your will does not have to be notarized, it is helpful if you have the witnesses sign and date before a notary public so that they don’t have to appear in court after your death to verify that the will is legitimate.
Moving
Many states are very similar in their laws concerning wills, but if you move, make a point to research the new state’s laws and to make changes to your will as necessary. This will prevent confusion after your death and will guard against any problems with the execution of your will.
