A will or testament is a document in which a person (the testator) assigns personal property rights to others following the testator's death. "Will" is a general term, while "testament" usually applies to personal property. An attorney is not necessary for drafting wills.
How to write a will
Any person of legal age can create a will. However, there are certain requirements for the will to be deemed legal. The testator must clearly identify him or herself as the maker of the will and that the will is being made. The words "last will and testament" will satisfy this need.
If previous wills have been created, the most current will must include language that revokes all previously made wills and codicils, which are amendments to existing wills. If the earlier wills are not revoked in the most current will, the earlier wills can revoke the most recent one. However, if a newer will is completely different from earlier versions, the earlier ones will be considered revoked by implication.
The testator must be able to prove that he or she has ownership of the property outlined in the will, and that it is being given willingly.
The will must be signed and dated by the testator, usually in the presence of at least two disinterested witnesses, typically witnesses who are not beneficiaries. Pennsylvania is the only state that does not require witnesses for the signing of the will. The signature must be placed at the end of the will. If there is text following the signature, it will be ignored and may invalidate the document altogether. There may be additional requirements for a will to be recognized in your state.
It's essential to review a will periodically to make sure it reflects your current state of affairs and wishes. Most people will draft several wills over the course of their lives; in general, it's a good idea to have a new will invalidate all previous versions. Failing to do this can result in lengthy probate court battles that will keep your heirs from accessing your estate.
Dying without a will
If a person dies without creating a will, also known as dying intestate, the state will decide how that person's property is distributed. If the deceased has a spouse and no children, parents, siblings, nieces or nephews, the spouse will receive all of the deceased's property. If the deceased has children, parents, siblings, nieces or nephews, the spouse will generally receive half of the deceased's property. If the deceased has two or more children, the spouse will generally receive one-third of the deceased's property.
All property that is not given to the spouse is distributed as follows: the deceased's children, parents, brothers or sisters (if they are not living, then to their children), the deceased's grandparents (if they are not living, then to their children), children of a previously deceased spouse, relatives of a previously deceased spouse and then to the state of the deceased's legal residence.
Wills and guardianship
For parents with modest estates, property and guardianship planning are the important things to consider in estate planning. Parents need to decide how to provide income for their children, who will receive their property and who will manage the finances for the children. Parents also need to designate someone to care for minor children in the event that both parents die before the children reach the age of 18. An estate planning lawyer may be needed to help plan for the care of minor children.
Additional provisions are required for special needs children who will require care and finances beyond the age of 18. An attorney and special needs organizations can help plan for the future for special needs children who may outlive their parents. Parents can set up a trust for the special needs child that can ensure that the child's assets are not used in place of public benefits, which can make that child ineligible for government programs.
Parents also need to appoint a guardian to make decisions on behalf of the special needs child. The named guardian should be someone who knows about the child's needs. In most cases, a responsible sibling or an aunt or uncle will be chosen as the guardian.
Even if you don't have a lot of property, parents of minor and special needs children must have an up-to-date will. Without one, your children's future will be decided by the state until they reach the age of majority. They will also be prevented from accessing your estate.
Drafting your own will
There are no legal requirements that a will be drafted by a lawyer. However, there are pitfalls to creating a will without a lawyer. The person who makes the will is not available to explain themselves or to correct any technical errors in the will when it comes into effect upon their death, leaving no room for mistakes or ambiguity. Minor mistakes in wills can cause great havoc among family members. A lawyer can act as your spokesperson and ensure there are no mistakes.
A will should be updated periodically, especially when there are changes in your family or financial situation including divorce, the birth of a child, the death of an heir, the acquisition of property or a significant change in the value of an asset. It is also important to review your will when there are changes in the law.
Wills are important legal documents that will help ensure your assets and property are distributed according to your wishes. They are also documents that will ensure the proper care of your family. Whether you are in poor health or excellent health, if there are important people in your life, you need to create a will to protect their interests after your death.
Researching how to write a last will and testament isn't a topic that most people want to think about, but drafting a will is a necessary part of responsible adulthood. If you've got a family to provide for or children to care for, it's especially vital that you draft a will in the event of an untimely death.
In the event of someone dying without a will, that person is said to have died "intestate," or without legal direction on what should happen to their property. In that case, the courts take over.
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