What Is a Will Statement?

A will statement—also known as a last will and testament—is a legally enforceable pronouncement of how a person wants their property and assets dispersed after death. In a will, a person can also indorse a guardian for their minor children and make provisions for any surviving pets. Additionally, a will is a legal document that states how your affairs will be handled after you die. A basic will entitles who will receive your property, appoints a guardian for your minor children, and names an executor to manage your estate.

While laws differ state by state, there are some formal requirements that a will must meet:

The testator, the person making the will, must be at least 18 years old and of sound mind.

The will must be in writing. While about half the states allow handwritten, also called holographic, wills, a pre-printed or typewritten document is preferred.

The testator must sign and date the will in front of witnesses who are at least 18 years old. Some states need two witnesses, while others require three witnesses. These witnesses cannot be beneficiaries in the will. Take note that is not necessary to have your will notarized. It is a good idea, however, to have your witnesses sign a “self-proving” affidavit, which is a sworn statement signed by both you and your witnesses confirming to the validity of the will.

It might be held invalid by a court if your will does not meet your state’s legal requirements. In this case, state law determines how your estate is managed.

What Is the Importance of a Will Statement?

A will statement is an essential factor of estate planning. A will makes sure that the person’s wishes are carried out and can make things easier for their inheritors. If an individual dies without a will, the dispersal of their property is left up to the government, and may even end up becoming state property. The format of wills can vary, but most follow a justly uniform layout.

While a will is a written document that speaks for you after you die, it can communicate how you want your property and assets to be distributed; name a guardian for your children if you pass away before they reach adulthood; and leave detailed instructions like arrangements for your funeral.

Furthermore, the document generally starts with a statement that the writer is of legal age and making the will freely and without pressure. It also proves to the writer’s mental soundness at the time the will was made. This section establishes the writer’s identity and contains an explicit statement that this final will repeals all previous documents.

What Are the Three Conditions to Make a Will Valid?

The three conditions to make a will valid are planned to make sure that the will is honest and reflects the wishes of the deceased.

Condition 1: Age 18 And of Sound Mind. This most basic condition described determines that anyone of sound mind who is at least 18 years old is permitted to create a will. The intention with this requirement is to make sure that a person is capable to decide how their assets should be divided upon their death and that they are not being manipulated by anyone who might be seeking to benefit. Moreover, the term “of sound mind” is common when determining legal aptitude. This means the person is able to understand the document they are signing.Condition 2: In Writing and Signed. A will must be signed by the deceased or by someone who had the authority to sign for the maker of the will. The will must also be signed by at least two other witnesses. In order for the signature of these witnesses to be legal, the signees should add their signatures to the document as soon as possible. The document should also be evidently identifiable as written in the deceased’s own handwriting.Condition 3: Notarized. If a will is notarized at the time of its implementation and witnessing, it is considered self-proving. In addition to this, a will can subsequently be made self-proving if the testator acknowledges the will’s legality and the witnesses sign affidavits before a notary. Furthermore, if a will has not been notarized, that does not mean it is invalid. It may, however, slow down the validation process, as the surrogate may have to take more steps to validate the will.

What Should You Not Put in Your Will?

In a will statement, you can be particular about who receives what, but attaching certain conditions may not work since no one can legally enforce the terms. If you have specific details about how someone should use their inheritance, whether they are a prodigal or someone with special needs, you may be better off opening a trust that can give you more control, even from beyond the grave.

Adding to this, you should not put anything in a will that you do not own outright. If you jointly own assets with someone, they will most probably become the new owner. This usually happens with property acquired by married couples in community property states. In detail, here are what you should not put in your will:

Property In a Trust

A trust is a detached entity that you can use to distribute your assets. It is a common estate planning option that avoids validation. When you title property into the trust, it becomes subject to the trust’s rules, which are arranged in the trust document and not the will. Since the trust works independently, it has a way to avoid inconsistencies and not to put anything in your will that the trust will take care of and distribute on its own terms.

Assets With Named Beneficiaries

Certain assets and financial accounts are payable or transferable-on-death. They are circulated or paid out directly to the named beneficiaries, which makes putting them in a will unnecessary. However, you can include information about these assets in your letter of instruction.

Instead of putting these assets in your will, designate them their beneficiary designations instead:

Jointly-Owned Property

Property that you jointly own with someone else will directly pass to the co-owner after you die, so you should not include it in your will. For instance, if you and your sibling own stocks in a jointly owned brokerage account, then they will continue to own the account and its investments after you die. This arrangement is called joint tenancy with rights of survivorship.

Moreover, there are other situations where you may jointly own property with someone else, even if both of your names are not explicitly named to the account or asset. In a community property state, anything you acquired during marriage may be considered community property, and ownership is split equally between you and your spouse. There is no need to put community property in your will since your spouse is inevitably authorized community property once you pass away.

Other Things You Should Not Put in A Will

Business interests can be given away through a will, however, there are a few reasons you may not want to. Wills must be probated in court, which can take time, making for a rough transition after you pass away. And the succession could be challenged. To create less of a burden for your business partners and family, you might want to speak with an estate planning attorney who can better help prepare the succession of your business. They can even help with any estate tax issues you may face as a business owner.

Certain situations may be more difficult to cover in a will. If you have a blended family or a child with special needs, you might want to contemplate other estate planning options that would better cover your certain needs. A will is not always the best choice for bestowing everything, particularly when the beneficiary needs to qualify for government benefits.

How To Write a Will Statement?

Writing your own will is perhaps not a main priority item on your to-do list. After all, no one wants to think about their death. That being said, making a will is one of the most important obligations that you can do for your family. While writing a will sounds like an unnerving task, it does not have to be.

Follow these steps to start writing your will statement:

Step 1: Create the Initial Document

Start by naming the document “Last Will and Testament” and counting your full legal name and address. In the declaration paragraph, mention that you are of legal age and sound mind, that this is your last will and testament and cancels all previously made wills and codicils, and that you are not making this will under pressure.

Step 2: Designate an Executor

The executor acts as your personal representative who accomplishes and distributes the assets of your estate. While testators—people writing wills—usually choose a friend or close family member, consider naming your attorney or financial advisor in order to ward off any possible problems. Make sure the person you choose is truthful, reliable, trustworthy, and willing to act as your agent. In the event your first choice is not available, appoint a substitute. Decide whether you wish to pay off your executor because closing an estate can be a scary task.

Step 3: Appoint A Guardian

It is vital to name a guardian to care for your minor or dependent children in the event you are the last surviving parent or the surviving parent is unfit to care for them. Or else, the court will appoint someone. You need to choose someone who is not only ready to take on the responsibilities of raising your children until they turn 18 but who is also close to you and your children. Make sure to open this decision with both your children and the potential guardian, and consider naming an alternate guardian should something happen to your first choice.

Step 4: Name the Beneficiaries

The beneficiaries or inheritors are the people who stand to inherit your assets after you die. Your beneficiaries may include your spouse, children, relatives, and close friends, among others. Make sure to provide the full names of your beneficiaries in your will so as to leave no doubt as to their identity. Whatever you do, do not name your pet as a beneficiary. Instead, assign a person to care for your pet.

Step 5: Designate the Assets

Make a list of your assets and decide who will inherit what. If you plan to disinherit a family member, make sure you name the person in your will and the explanations behind your decision, if you so choose. Should you wish to disinherit your spouse, check with an attorney when drafting your will. Under some state laws, the surviving spouse has the right of election, which means they are authorized to take a percentage (usually one half) of the estate. Some assets, such as a life insurance policy, that name a beneficiary are not part of the will and must go to the designated person.

Step 6: Ask Witnesses to Sign Your Will

After you have finished writing your will statement, ask two persons to serve as witnesses. These witnesses must be over 18 years old and not be beneficiaries in your will. Sign and date the will right in front of them and then have your witnesses sign and date the will as well. In most states, you don’t need to have the will notarized. You might want to require your witnesses to sign a statement called a “self-proving” affidavit so that they don’t have to go to court to attest that the signature on the document is yours.

Step 7: Store Your Will in A Safe Place

Keep your will in a safe place such as a safe deposit box or a vault and let your executor know where it is. You may want to review and assess your will every two to three years, especially after a major life change such as a divorce, birth, or death.

FAQs

Who needs a will?

Anyone with property and assets should have a will, and it should be updated as life changes due to things like marriage, divorce, having children, a death in the family, or property acquisition. You should review your will more often to make sure it continues to reflect your life and wishes.

Can I write a will without a lawyer?

You might be surprised to learn that you do not need a lawyer if you are in the market for an estate plan that will help you sleep better at night. It is legal to write your own will, and given how much it costs to draft a will with a lawyer, a do-it-yourself method might be a cost-saving option. However, you need to draft a will that is legal in your state and make sure it can stand up to scrutiny.

Should my spouse and I have a joint will or separate wills?

Estate planners almost generally advise against joint wills, and some states don’t even recognize them. Odds are, you and your spouse won’t die at the same time, and there is probably a property that’s not jointly held. That’s why separate wills make better ways, even though your will and your spouse’s will might end up looking strangely similar.

Who has the right to contest my will?

Contesting a will refers to challenging the legal legitimacy of all or part of the document. A recipient who feels slighted by the terms of a will might choose to contest it. Reliant on which state you live in, so too might a spouse, ex-spouse or child who believes your stated wishes go against local probate laws. A will can be contested for any number of other reasons: it wasn’t suitably witnessed; you weren’t sound when you signed it; or it’s the result of intimidation or fraud. It’s usually up to a probate judge to settle the argument. A visibly drafted and validly executed will is the best defense.

To make sure your will and wishes are carried out, try discussing with your executor ahead of time. Since the family members may not be allowed to view the will before making arrangements, funeral instructions might not be so useful in a will. Overall, one’s wishes and desires are best saved for a letter of instruction, a more casual document that is actually meant to transmit these details and express sentiments.