Writing a Will

Although death is an uncomfortable topic, it is still important to begin to think about estate planning and writing a will. A will is a legal document that allows, upon your death, that your estate will be distributed as you wish. A will protects your assets and enables you to provide for your family, friends, and charitable organizations as you please.

If you are married, both you and your spouse should prepare separate wills. In order to draft an effective will, you must be of legal age and "sound mind". You should take an inventory of the property you own (and determine the manner in which you own it, if you own it with a spouse or another individual) and gather all pertinent information such as bank account numbers, safe deposit boxes and life insurance policies. You should then determine how you would like your assets distributed.

While wills can be simple or complex depending on the nature and amount of the estate, the basic elements that should be included in a will are:

  • Your name and address;
  • A statement that the document is a will;
  • A statement that the document revokes all prior wills, and is meant to be your "last will and testament";
  • Your specific bequests, both in property and cash to persons and charities;
  • A named Executor, who will oversee the payment of any debts and monies owed and will distribute the remainder of your estate to your named beneficiaries (it is important to choose your Executor wisely, as the Executor is responsible for handling tax, estate, and administrative issues);
  • In the event of the simultaneous death or you and your spouse, a guardian for minor children and in the alternative, alternate guardians if one is unable to assume the role;
  • Your signature and the date that you are executing the will.

The will should be notarized and witnessed by at least two disinterested persons. The original will should be kept in a safe place and family members should be told where to find it in the event of your death.

While a will gives notice to the world or your intentions, those intentions may change after a significant life event, such as a marriage, divorce or birth or adoption of a child. You should review your will after any significant life event to see if it still meets your desires. If you need to update your will, you may add a codicil in lieu of rewriting the entire will. A co-dicil requires the same formalities as drafting a will.

If you die without having a will in place, your property passes in accordance with state intestacy laws. In this instance, a family member or other interested party petitions the Probate Court for distribution of your estate, and your estate passes according to statute. In Massachusetts, for example, if you die leaving a spouse and children, your spouse will receive one half of your estate and children receive the remaining half. By taking the time to think about your possessions, and how you would like them distributed, you are creating a more thoughtful, meaningful approach to the disposition of your assets. For example, if you desire to give a special piece of jewelry to your niece, you may do so in your will with a special message to enjoy it. Smaller (and even larger) gifts such as those with emotional attachment will not be lost or misdistributed. Having a will in place ensures that your property and personal belongings are distributed according to your wishes, not according to statute.

Depending on the complexity and amount of your estate, you may wish to hire counsel to assist you. Oftentimes hiring a financial consultant for tax considerations may be beneficial to you as well. The most important aspect of estate planning is you directing how and to whom you would like your assets distributed.

This article is intended for informational purposes. Nothing in this article should be construed as legal advice or legal opinions regarding specific circumstances.

Article provided by Homesteader.

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