Article summary: What a will is, what things you must have to make your will legal, common parts to a will, and some other things to be aware of when making out your will.
Will (n.): a legal declaration of a person’s wishes regarding the disposal of his or her property after death, especially: a formally executed, written instrument by which a person makes disposition of his or her estate to take effect after death.
It sounds a little ominous, when written like that. Maybe it’s easier to read it like this:
Will (n.): the desire, inclination, or choice of a person.
That’s a little easier to cope with.
In previous blog posts we’ve covered common excuses people give for not creating a will and looked at a few real-life examples where having a will is better than not having one. Now let’s examine the will in a little more detail, and touch on the legal (probate) process all wills eventually go through.
First: you must be legally able to make your will. That means:
- You are of legal age. In most states, this means 18.
- You are mentally competent. You know what you are doing, and you are doing it voluntarily, free from compulsion or other undue influence. You know what assets you own, and you know who your descendants are. When you sign your will, you must have witnesses sign also, attesting to your mental competence. If there is a possibility of estranged descendants contesting the will, claiming mental incompetence or undue influence, extra measures should probably be taken to provide additional proof.
- Witnesses are present at the will signing. There should be at least two witnesses present to affirm that you are mentally competent and not under any duress. These witnesses probably should not be (and in some states are not allowed to be) beneficiaries of the estate.
- The will should be self-proving. The self-proving affidavit is a statement at the end of the will signed by the witnesses that clarifies that all state procedures were followed, that you were aware you were signing a will, and that you did so willingly. This affidavit allows the probate judge to skip the process of finding your witnesses after you have passed away and asking them those same questions. Specific language and requirements for self-proving affidavits vary by state, so be sure to check what’s appropriate in your situation.
Next: observe some general guidelines.
- The will should be typed. Some states will accept handwritten (“holographic”) wills, and a few still accept oral wills where there are multiple witnesses. Stories are told, even around ACU, about how a handwritten will passed millions of dollars to long-lost nephews or charities or whatever, etc. etc. But, and I can’t stress this enough, Do It Right. Type up your will. Better – have a professional do it for you. Don’t do anything that increases the chance of some disaffected heir contesting your will.
- Leave property for spouses. This is probably not an issue for most of you, but all states include provisions in probate law to prevent spouses from being completely disinherited, regardless of provisions in the will. Again, you don’t want to have your will contested.
- Provide for minor children. If you have minor children, name a guardian for them. This is probably the most important reason for younger couples to have a will. If any of your assets will go to a minor child, name an administrator for those assets as well. This may or may not be the same as the guardian.
Other parts of the will:
- “Last will and testament”. Make it known that this will is intended as your will. Any other wills previously written are considered null and void.
- Family information. Name your current spouse and all children. If you have children by a prior marriage, you might consider stating that fact.
- Named executor. Who’s going to run your estate when you’re gone? Your spouse? A competent child, or niece or nephew? Some people use a “corporate executor”, such as a bank trust officer, attorney or high-ranking officer of a charity. This is actually a very important task, so choose wisely.
- Payment of debts and taxes. Specifies what assets should be used to pay for any outstanding debts or taxes, and what assets should be excluded from this use.
- Specific gifts. If there are specific things you want given to specific people, this is the place to do it.
- Residuary gifts. Everything else of yours that isn’t named specifically – what happens to it? Does it all go to one person? Split it all between your heirs? Give it to charity?
- Estate administration. Enumerate the powers your executor has to distribute your estate according to your wishes.
Next week we will look at the power of attorney document and healthcare directives. In the mean time, if you would like more information or advice on creating a will that accomplishes your goals, please contact The ACU Foundation. My email address is chris.sargent (at) acu.edu. Our toll-free phone number is 1-800-979-1906. Our services are completely confidential and completely free of obligation or monetary cost.
Disclaimer: All information on this blog is for educational purposes only. Employees of The ACU Foundation, and the writer of this blog specifically, are not attorneys and are not your adviser. Call us or come see us if you have any questions about this. See here for a more comprehensive (and more boring) version of this disclaimer.