Introducing the Will: The Centerpiece of Any Estate Plan

Excerpted from
What Your Lawyer May Not Tell You About Your Family's Will: A Guide to Preventing the Common Pitfalls That Can Lead to Family Fights
By Kaja Whitehouse

No matter how little you know about estate planning, you probably have a good idea what a will is. A will is a legal document that you write during your life to explain who gets what when you leave this earth. It can also include instructions on other important after-death matters, such as the naming of someone to act as the guardian of your minor children.

Technically, a will is known as your Last Will and Testament. Under old common law, people would draft a document called a Testament that disposed of their real estate property. A separate portion of the document, called a Will, would dispose of all their personal property. Thus, the term Last Will and Testament still appears at the top of all will documents.

The Components of a Will

There are four main components to a will:

Naming the executor: You get to name someone you trust to take charge of earning out your wishes, as outlined in your will. This process is known as settling the estate, and this person is known as the executor-or personal representative in some states. He or she is responsible for making sure your stuff gets into the right hands when you die. It's not as simple, however, as calling a meeting of your heirs and telling them to make sure they take what's theirs on the way out. The executor has to settle the will through an established process known as probate, which can take anywhere from a few months to more than a year to complete. To put it bluntly, there's paperwork involved-a lot of paperwork.

Naming a guardian for your children: The will is generally the only legal means you have for naming someone to take care of your children when you die. Keep in mind, however, that it's a nomination, not a guarantee. When it comes to minor children, the state has ultimate control. It's highly unlikely, however, that your wishes will be overridden. Courts tend to reject a deceased's choice of guardian only with serious cause, such as drug addiction, a troubling criminal history, or concerns that the environment could be abusive.

Making bequests: This is the part that everyone knows. The will allows you to name the people you want to inherit your property and possessions. For many people, this can be accomplished in a few lines. You might say, for example, "I leave $5,000 to the Marin Humane Society. Everything else will go to my husband. Bill. If he dies before me, my property and possessions will be divided equally between my two sisters, June and Jill." Generally speaking, while you can leave your property to whomever you want, there are some legal restrictions guiding who can be cut out of a will. Your spouse, for example, may have legal rights to some of your money.

Establishing a trust: A trust that's created through a will is known as a testamentary trust. You can use a will to create a trust when you die that will control your heirs' inheritances.

While most people know what a will is, you may still have a lot of questions about how wills work, including: What wakes a will legally binding? Do I need a lawyer to draft it or can I do it on my own? Does a will have to be typed or can it be handwritten? What are the limitations of a will, if any? Can I leave whatever I want to anyone I want or are there restrictions on my after-death transfers? Are the wishes outlined in a will enforceable? Who enforces them?

Let's take a look at some of these questions more closely.

What Makes a Will Legally Binding?

There are some formalities required to make a will legal. Every state has different Riles, however, so it's important to be up-to-date with your state's rules on writing a valid will. Here are some typical guidelines:

• You must be of legal age and "of sound mind": In order to draft a will, you need to be a legal adult, which generally means at least eighteen years old. You also need to be of sound mind. The legal requirements for this are fuzzy. Generally speaking, to have a sound mind you've got to know who your legal heirs are, and what you own.

• The document should be typed: Some states allow holographic wills, or wills that are handwritten. (Some even accept oral wills.) Most states, however, require that the document be typed. It's safest to type your will, since this is acceptable in all states whereas a holographic or oral will may not be. Whether you type or write your will by hand, you want it to be consistent throughout. A will that's half handwritten and half typed will create problems, even if the state normally accepts both types.

• You must state that this is your will: You want to clearly state that this is your will. Otherwise, it could be argued that it's just a piece of paper stating your wishes, but not legally a will.

• You must make a bequest: In order to make the will legal, you want to make a bequest or name someone to be guardian of your minor children. A document that says it's your will cannot be valid if it serves no purpose.

• You must have witnesses: After drafting your will, you want to sign and date it. Before you do this, however, you need to gather witnesses to review the signing process. Most states require just two witnesses, but some require three-so, just to be safe, three's a good number. All your witnesses should be present at the same time to witness your signing. You cannot have one witness present at the actual signing and another at a later date. After they witness your signature, your witnesses will also sign the will.

• Witnesses cannot be beneficiaries: Your witnesses cannot benefit from your will. You want a totally disinterested party, such as a neighbor or the receptionist in your office. Also, your witnesses should be legal adults, so don't rely on your twelve-year-old nephew.

In the majority of states, you can take an extra step to give your will a final seal of approval-thus saving a lot of hassle for your executor and witnesses down the road. To do this, you need what's known as a self-proving affidavit. If you don't know what this is, don't worry; your notary public should know and should be able to provide you with the proper forms.