What is a Last Will and Testament
In an article published by Forbes online, a significant number of people belonging to the millennial generation does not have several estate wills, which are: Living Will, Power of Attorney, and Trusts. It also includes not having a last will and testament because of the general idea that it is not needed until someone is dying. Conway further explained in the article that a will does not only provide instructions to the remaining family in cases of unforeseen death, the last will and testament also paves for a personal legacy.
A Last Will and Testament is a legal document that contains instructions and details on how a person wants their estates, belongings, and wealth to be distributed among the living members of their family. The recipients, however, are not limited to the family of the person. It can also be given to private organizations that were supported by the deceased. It can also contain details regarding the guardianship of the dependents. There are also last wills that contain stipulations about conditional gifts to some benefactors, a simple example for this is when the partition is awarded only when the beneficiary accomplishes a certain goal. Special instructions regarding the burial are also commonly included in a last will. The last will and testament covers all the possible living situations in cases of unforeseen and immediate death.
Types of Last Will and Testaments
As popularized by the media, last will and testaments are usually hidden in vaults and waxed envelopes to avoid unwanted changes from some people who want to own more for themselves by taking advantage of others. What we usually see on television is only one type of will. It comes in different forms depending on its form and general purpose.
Holographic Will: A holographic will is also a written will. All the statements and decisions are made by the testator, the owner of the properties. The signature of the testator is also affixed in the testament to provide authenticity. The signature on the document is also the basis for its validity. Unsigned documents are seen to be invalid and, therefore, do not carry weight. But, there are also cases when an undated holographic will is also considered to be invalid. Having a holographic will is beneficial because it is legally accepted in most of the states without question. A holographic will is usually read by a lawyer to the family of the deceased days after the burial. This type of will can either be handwritten or digitally made, it depends on which is more convenient for the testator. To date, a written will is the most common form.Oral Will: Also known as nuncupative wills, these are declarations stated out loud to one or several witnesses. Oral wills are common when the testator was not able to write down a will before facing sudden death. The person only made instructions while facing their imminent death. Some states consider these statements enforceable when there are two or more witnesses who heard the account first hand. Other states narrow down the consideration by honoring such requests from select professions such as the military workforce.Deathbed Will: This type of last will and testament is similar to a nuncupative will. The testator is already on their deathbed upon making this type of will. This type is applicable for people who have degenerative conditions, thus having very poor health conditions. However, this type of last will and testament has several repercussions because of testator’s current health condition. They may be subject to undue and unwelcome forceful influence from people with fraudulent intentions. Moreover, their mental state upon making such decisions over their estate, possessions, and wealth can be questioned. In these cases, it is best to have an estate lawyer and several witnesses present.Pour Over Will: This type of will is only applicable when the testator has an existing trust-based estate plan. This type of testament will determine the fate of the estates and properties left by the deceased. Together with the trust-based estate plan, decisions regarding the properties will be forwarded to the different trustees with specific roles. This type of last will and testament also dictates the fate for the remaining properties which are not included in the trust-based estate plan. A provision states that all these unrecognized estates will be succeeded by the trustee who is also the beneficiary of this will. The statement bears that it explicitly bears information on who will handle the financial activity and who will oversee all the activities and programs that care for the properties.
How to Write a Last Will and Testament
Writing a last will and testament is not as simple as directly assigning something to a chosen benefactor. It needs a proper and thorough introduction, which encompasses several elements that make it legal and authoritative. It also needs to be specific; every detail needs to be stated clearly and directly. Ultimately, a last will and testament includes the declaration of the executor, beneficiaries, and the partitions of the testator’s properties.
Step 1: Start with a Proper Introduction
The last will and testament needs to have a proper introduction indicating that the document is indeed your last will and testament. This declaration is vital in determining that the testator is well aware and conscious in making this legal decision. It also introduces the testator of the will and their essential details, including the present address and their Social Security number (SSN). If an SSN is not available, any identification card number is also acceptable.
It is also important to state that you are not forced by anyone or any violent circumstance in drafting the last will and testament. A vital component to include in the introduction is the provision that revokes the power and authority of the previous wills. The executor should only follow the current last will and testament.
Step 2: Establish the Executor of the Will
The primary role of the executor of the will is to enforce the wishes of the deceased. The executor may be the legal advisor of the testator or a business confidante, under the supervision of a lawyer. The executor shall read all the provisions of the will to the beneficiaries. It is also ideal to choose two people to be your executor, one is the primary executor and the other is a back-up if in case the first choice is unwilling or unable to serve the role.
They will also bear the power to make decisions in place for the testator, but within the parameters set by the testator. They are also the ones who will follow the special instructions of the testator, especially regarding existing financial activities. There are also some people who leave special instructions to provide special care for their pets.
Step 3: Identify Beneficiaries
One of the integral pieces of information in the last will and testament is the identification of the beneficiaries who will inherit the properties of the deceased individual. A comprehensive list is essential wherein the name of the person is stated and their significant role in the life of the testator. An example is the identification of the spouse, the complete name is indicated together with the straightforward statement that they are the spouse. This manner also goes the same for determining the children of the testator who are the direct and legal beneficiaries.
If in case there are no direct beneficiaries, the testator can choose to leave their wealth and estate to select organizations and movements that they have supported while they were still alive. There are also recorded files wherein the owner of the will left a significant amount for the care of animals and non-living things, such as for the care of properties. In these cases, it will be under the supervision of the assigned executor.
Step 4: Indicate Particulars of the Distribution
An important thing to take note of is that last will and testaments need to be as specific as possible. Being specific with the details regarding the partitions avoid confusion and possible arguments that may possibly lead to lawsuits. But, before indicating the distribution, make sure that your properties can be legally assigned to a beneficiary.
You can assign the partition in terms of percentages, especially when dealing with money. If you want to assign a specific asset to someone’s care, also declare it in a direct manner. Specific assets may pertain to pieces of land and properties such as houses and establishments. You can also assign particular personal possessions, such as family heirlooms. If you want to assign a certain amount or property to a minor, it will be under the custody of the guardian until the minor reaches the legal age.
Step 5: Affix Signature
The most crucial task in making a last will and testament is to affix your signature. The signature, together with your personal identification details, will determine the authenticity of the will. This detail will make the testament enforceable and valid in several states. Although, there are some states that require two witnesses, who do not have direct involvement in the last will, to serve as witnesses and affix their signatures in the document. All the signatures or initials should appear on each page of the document. Before signing the document, make sure that there are no more mistakes, changes, or follow-up addendum to the document.
Dos and Don’ts of Writing a Last Will and Testament
1. Do review previous contracts and state laws
Reviewing previous property contracts make sure that the remaining estates and properties are up for legal partition. This information helps in making sure that the testator is reminded and well-aware of the legal limits of their property. Properties and estates with multiple owners may have an implication on how the property can be passed down. The details gathered from this review also determines if the ownership of the fruits of the land or estate are also succeeded by the designated benefactor.
Also, take note that there are community property laws that overrule stipulations in any last will and testament. There are a handful of states that follow this legal proceeding. When presented before the court, these laws are followed and implemented regardless of the direct provision in the will.
2. Do consult a lawyer
In drafting a last will and testament, it is best to do it under the supervision of a lawyer who is an expert in this field. An expert advice can help you make the best decisions regarding who will look after your properties and wealth after death. Someone who is an expert in drafting wills and legal documents can also provide a comprehensive explanation of the effects of leaving a last will and testament. Do take note that the lawyer will only oversee. Thus, they will not make any decisions on behalf of their clients.
3. Do make sure to have witnesses while signing the document
The presence of witnesses during the signing of the last will and testament is proof that the document was made legally and that the testator was mentally stable. As stated previously, the ideal witnesses are those who are not part of the characters of the will. It means that they are neither the executor or any of the beneficiaries of the will. In cases of revisions or drafting a new will, the same witnesses should be present at the event. It is crucial to note if your state requires a minimum number of witnesses to make a last will and testament valid.
1. Do not be vague and general regarding the partitions
The primary intention of a last will is to leave instructions and declarations on how to handle remaining estates and properties. Make sure to relay this message by being clear and specific with the allocations. It is necessary that the document should contain the complete name of the beneficiaries with the list of their partitions after it. Estates that do not have specific names will be recognized by their address.
This manner also goes the same when including instructions for special cases. These cases include delegating a partition for a minor and their guardianship, for someone who may pass before the testator, and for a benefactor under a conditional clause. The declaration for these instructions should be straightforward and clear to avoid confusion and further conflict.
2. Do not draft a will under duress
In cases of making a last will and testament, a person under duress is someone who is forced to write and sign a document that is according to their decisions. A third party may be involved in coercing the testator to bring the favor to them. So, it is vital for the testator to discuss the decision about making a last will with people who they can trust and not those who will undermine their decisions.
A will can also be unenforceable and invalid once it is proven that the document was made under duress. Take note that a vital factor to consider the validity of a will is the mental capacity of the testator during the drafting and signing. If held under violent and threatening situations, the mental status of the testator is compromised.
3. Do not forget to update the will
A last will and testament can undergo multiple revisions over time. You may choose to draft your first will during the prime of your career when you own multiple estate, possessions, and properties. But, your wealth continues to grow over time and you may change your mind about your chosen benefactors. It is easy to revise and come up with a new last will and testament, but make sure to include a provision that revokes the power of the previous wills. Once again, make sure to do this revision with the presence of your lawyer and witnesses to prove authenticity.
Last will and testaments are not only for those with multiple properties and massive accumulated income from all the years of hard work. Each one is encouraged to come up with one, as early as one starts to work. A well-written last will and testament can stir away from confusion and conflict in the future.