Although recent news surrounding the estate tax—both its repeal and its reinstatement—has died down, many people are still talking about their estate plans. Most people recognize that now is the time to create their estate plan, or to review and update their existing plan if they have one. This means that many people are asking questions about one of the primary documents in just about any estate plan: the Last Will and Testament.
What is a Will?
A will is, for many people, the cornerstone of their estate plan. In fact, if you only create one estate planning document, (which we definitely don’t recommend) that document should probably be a will. A will is the document which details your wishes about how and to whom your property will be distributed upon your death. A will can list your property in great detail, or it can make a statement about distributing “all of my property” in general. Your will also names an executor, the person who will carry out your wishes as detailed in the document.
What is required to make a Will?
At its heart a will is very simple. Requirements will differ depending on your state of residence, but there are some basic requirements that should be the same across the board:
· A will must be created by a testator who is of legal age, of sound mind and judgment, and under no duress.
· A will should be in writing and signed and dated by the testator.
· In Texas, if the will is not wholly in the handwriting of the testator, the will should be attested by two or more credible witnesses over the age of 14.
· And in some states, it must also be notarized.
· It’s also a good idea that the will revoke all previous wills and codicils.
It is important to note that there is no requirement that a will must be created by or with an attorney; however, there have been many instances where homemade wills have been found to be invalid, or have been contested by disgruntled heirs or potential heirs, so having the help and advice of an attorney is highly recommended.
What happens if you don’t have a Will?
If you don’t have a will your property will be distributed according to the intestacy laws of your state. Property will generally be inherited by a spouse, or by a spouse and children in certain percentages. If there is no spouse or children then property will generally go to living parents or siblings, then to nieces, nephews, or other living relatives who can be found. The state will choose an executor for your estate, as well as guardians for any minor children you have. Unfortunately, the people chosen by the state to serve in these roles may not be the people you would have chosen. Additionally, the probate process will be much more expensive and will take even longer than usual as the extent of your estate, as well as any outside claims to it, are investigated and your legal heirs will have to be formally determined and ordered by the court.
Luckily, there is very little reason for anyone to die without a will. Although wills can be designed to be as comprehensive and intricate as you like, they can also be very simple documents which can provide an incredible peace of mind for you and your family. Contact our office—or another attorney you trust—to help guide you through the process of creating your own last will and testament.