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Wills

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What is a Will?

A will is a communication, written or oral, that explains how property should be handled after death. A will generally names an executor or executrix. The executor/ix is responsible for:

  • Verifying that the instructions in the will are followed, and
  • Taking the estate through probate if required.

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Will Details

In most states, a will should be a formal document, typed and signed in front of witnesses. At the time a will is executed, the testator (person making the will) must be 18 years of age or older and mentally competent. Consulting a lawyer about how to construct a will is recommended, but there are many will creation programs and will creation tools available online that can help you construct a basic will.

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Types of Wills

Simple

This is a will that details the simple distribution of assets after someone dies. These wills are not complicated by trusts or multiple provisions and generally are used for those who have small estates.

Holographic

A holographic will is handwritten and signed by the person to whom the will applies. By definition, a holographic will is not witnessed and does not comply with other requirements often stipulated in the law. Holographic wills are not valid in all states and those that are can often undergo much more scrutiny than a formal will.

Please note: Often, a holographic will is only acceptable in certain situations and if it meets certain requirements, so it’s important to consult your state laws to see if a holographic will is valid. The probate court or other legal parties are much more likely to question a holographic will and to try to verify its authenticity.

Oral

An oral will (nuncupative will) is a will that is simply spoken to witnesses without any formal documentation. Oral wills are only recognized in a few states and typically only for situations involving military personnel or similarly urgent situations in which there is no time to draft a will. These wills are particularly subject to fraud because of a lack of documentation and are generally not recommended. In fact, a probate court likely will only recognize an oral will if it can be proven that there was no other choice given the situation and if there were credible witnesses.

Joint Will

A joint will applies to two people, often husband and wife or partners, and typically each party leaves their assets to the other. The assets are distributed as stipulated in the will regardless of which party dies first; the will then offers details as to what should happen if both people die or when the second person dies. Some lawyers recommend against a joint will because all assets are not fully transferred (to other family members, etc.) until the second person dies and circumstances can change over time. If a second party dies several years after the first party, for example, their wishes for the distribution of assets may have changed, but the joint will must be carried out as originally planned. (Please note: There is legal recourse to change the will after the first party dies, but it is difficult.)

Testamentary Trusts

A testamentary trust stipulates that certain assets are placed into a new trust for a specific period of time after death, rather than being distributed to heirs. These are used to preserve inheritance for family members and close friends and can be established by a will.

Pourover

A pourover provision directs assets from a will into a trust or vice versa from a trust into a will. Similar to a testamentary trust, this will places assets in a trust. The difference is that the trust is established before death, not upon death.

Living Will

A living will is created to stipulate what should be done if someone is incapacitated and cannot make their own decisions. Directions about resuscitation, life support and other life-prolonging medical treatments, as well as power of attorney, are usually included in a living will. Having a living will ensures that someone’s wishes are carried out even when they are not capable of expressing them. (Please note: Living wills are also sometimes called an advanced directive, physician’s directive or a health care directive.)

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