The Importance of a Last Will and Testament and How to Create One

A last will and testament is a legal document that outlines how you want your estate to be distributed after your demise. Who gets the house? Who gets which antiques? Who gets a bank account? Who takes care of the pets? These are just some of the questions upon which a will answers and instructs. It is crucial to have a will to ensure that your assets are passed on to your desired beneficiaries according to your wishes. Our law firm can assist you identifying what issues matter the most to you and drafting a last will and testament that meets your needs and is legally binding.

Why Create a Will?

A testator, the person creating a will, can devise their property and assets to named beneficiaries in the document. A will serves four important purposes:

• Provides control over your assets: With a will, you can control what happens to your property even after your death.
• Incentivizes productivity: A will incentivizes people to be productive because they can decide how their property will be managed after they pass away.
• Protects the decedent's heirs: A will appoints a guardian to protect your minor children and ensure they are taken care of after you die.
• Allows you to appoint an executor: You can appoint someone you trust to oversee the distribution of your estate and ensure that your wishes are followed.

General Requirements of a Will

Each state has specific requirements for a will to be considered valid. However, there are four general requirements that are consistent across all states:

• The testator must have testamentary intent and must have intended to create the will.
• The testator must have testamentary capacity and must have understood that they were creating the will when they signed it.
• The will must have been executed without any undue influence, fraud, duress, or mistake.
• The will must have been duly executed through a proper ceremony, such as signing the will and having witnesses per your state's law.

Intestacy: The “Default” Method If You Die Without a Will and Probate

If someone dies without a will, it is known as dying “intestate.” In this case, the State will step in and distribute any property. However, intestacy laws may not pass property in the way you would want it to pass. These laws aim to benefit immediate family members, which could lead to your property passing to a relative whom you would not wish to be a beneficiary and/or guardian.

Moreover, property governed by intestacy law must pass through probate court, which can be expensive and time-consuming, leaving fewer benefits and more burdens for your loved ones. That said, a valid Will also goes through probate to implement its provisions. The only difference is a well-crafted last will and testament will go through probate rather quickly and without incident because it's harder for someone to challenge it.

Further, there are other ways to distribute property according to your wishes while also avoiding probate completely. Speaking with our estate planning lawyer will help you determine what will work best in your specific situation and with your specific assets.

The Risks of “Do-It-Yourself” Wills

Many people use “do-it-yourself” wills, which are forms that can be found online for a fee, to save money. However, these forms are not tailored to your unique circumstances and can lead to mistakes that may open the door for challenges to the validity of the will. If you decide to try a DIY Will, keep the following five tips in mind:

• Define who your family members are. For example, if you brought children into a second marriage, make sure who constitutes “family” in your Will.
• Assign and direct the executor to pay debts and expenses, including anything from credit cards to personal loans to funeral expenses.
• Make specific bequests or gifts so that there is no confusion about who gets what.
• Provide a catch-all clause for assets that you do not specifically give away.
• Be specific about people and property as much as you can.  Wherever there is any ambiguity there is also room for a challenge.

A well-crafted last will and testament will usually go through probate quickly and without incident because it’s harder for someone to challenge it. At a minimum, it is essential to have an attorney review your last will and testament to ensure that it's in compliance with state and federal laws.

 

Estate Planning:

    - Our Process

    - Estate Planning Basics

        - Wills

        - Trusts

 

__________________

 

Relevant Blog Posts:

     - Introduction to Estate Planning

    - Exploring NY Trusts: A Look at Common Trust Types

    -  Estate Planning Posts