Statistics show that 66% of American’s don’t have a valid Will. There is a common misconception among the general public that a Will must be drafted by an attorney who will likely charge huge sums of money to create the document. In all actuality, most any person can create their own legal and binding Will. Most attorneys can produce an official looking and attractive will, however no state law requires that a will be prepared or approved by a lawyer.
The preparation of a Will ensures that your assets are distributed exactly as you wish. In the case where minor children are involved, a Will provides for care, including the best method for managing property left for the child’s benefit, and nominates a guardian over the child or children. A Will allows you to disinherit individuals and it also provides for the disposal of your body after death.
If a person dies intestate, or without a will, their property will be distributed to their children and spouse, according the laws of the state where the individual was residing at the time of death. In the instance where there is no family, the property may become the charge of the state. If the death leaves a minor child, the state judge will determine who will care for the minor child and their property.
The following things should be considered when drafting your will:
1. The Law That Governs Your Will
Generally a Will is valid in any state in the United States where you die. For example, if you live in North Carolina but you prepared your Will in New Jersey the Will is valid in North Carolina so long as it was prepared according to the laws of the State of New Jersey.
Nominate an individual(s) who will provide the physical care and raise your children
Nominate an individual(s) who will handle and supervise the property (assets) for the children’s benefit. NOTE: Can be the same as the individual who will provide physical care
The general format of a Will may take the following form:
1. Introduction-I, John Doe, a resident of Nowhereville, Oregon, do hereby make, publish and declare this to be my Last Will and Testament. I hereby revoke all previous will and codicils.
2. Identification of Children and Grandchildren-I have the following natural children: George Smith, Martha Smith Jones and Abigail Smith. I have the following step-children: Gunther Doe. I have the following grandchildren: Molly Smith.
3. Debts and Expenses-I hereby direct all my just debts and funeral expenses be paid or provided for as soon as practicable after my death.
4. Payment of Taxes-All estate and inheritance taxes shall be paid out of my residuary estate as an expense of administration.
5. Specific Bequests-I hereby devise and bequeath all of my estate, either real, personal or mixed, unto my beloved wife, Jane Doe. In the event that my wife should predecease me then I hereby devise and bequeath my estate as provided hereinafter under the section entitled Residuary Bequests.
6. Residuary Bequests-I hereby devise all of my homemade quilts unto my daughter Martha Smith Jones. I hereby devise all of the rest, residue and remainder of my estate, either real, personal or mixed, unto my beloved children, George Smith, Martha Smith Jones and Abigail Smith.
7. Executor/Executrix-I hereby nominate and appoint my wife, Jane Doe, to serve as my executrix. In the event that Jane Doe does not survive me or she is unwilling or unable to serve as my executrix, then I hereby nominate and appoint George Smith to serve as my executor.
8. Powers of Executor/Executrix-I direct that my Executor/Executrix serve in such capacity without bond. Further, I direct that my Executor/Executrix shall have all of the powers legally bestowed within the bounds of the laws of the State of Oregon.
9. Signature-Sign the will in the presence of two or three witnesses and a Notary Public. If the will consists of more than one page, either initial or sign and date the bottom of each page.
10. Self Proving Affidavit-A self proving affidavit is signed by the testator (the individual making the will) and the witnesses in front of a notary public.
The internet and your local library are great source Will templates.
The information contained in this article is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. This information is not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal counsel.
Property that you received as joint tenancy with another individual-ie: your house and property that was received with your spouse automatically will transfer to your spouse at your death
State how the property is owned (ie: owned with great aunt martha)
Name a person that you trust completely
Your executor/executrix should reside in the same state as you
Name a person who is in good health and will likely be around after your deathThis person will have the legal responsibility for handling your property and distributing it as your will directs
Some states acknowledge a holographic, or handwritten Will. Holographic wills are not recommended and the preference is a typewritten Will
Oral Wills are valid only in a few states and are acceptable only if made under special circumstances, ie: if the will maker is in imminent danger of death or if the Will is made while on active duty with the U.S. Military
A Joint Will is usually made by two married people who sign the same Will. Joint Wills are not recommended because they can encumber property for years pending the second death
At least one executor shall be appointed. An executor, or executrix, is the individual appointed to carry out the provisions of the will
The Will must state how you want your property divided
The Will must be signed and dated
The Will must be witnessed by at least two, or in some states, three witnesses who are not beneficiaries under the Will
Must be of “sound mind”
Know what a Will is
Know that you are making a Will
Have a firm understanding of who is going to receive the property in your Will
Know exactly what property you own
Most Court have the capacity to declare a Will invalid if it is found that it was made under duress or fraud
You must be 18 years or older at the time of the signing of a Will
