When you are contemplating end of life decisions one of the most
important things you can consider is the making of your last will and
testament. When you are compiling your
will you will want to meet with an estate planning lawyer to go over the
specifics about what should be included.
Every state in the Union has its own rules about how a will needs to be
drafted, the number of witnesses that need to attest to the will and how it
must be presented.
In most states there are 7 requirements to making a valid will. If these formalities are not followed then
your will may not be valid and your estate may fall into intestacy. This should be avoided at all costs due to
the fact that intestacy will require your assets to be divided amongst your
spouse and blood line, starting with your issue. Intestacy can lead to individuals who, were
never intended to receive a bequest in the will, receiving some or all of the
decedents assets. The 7 requirements of
a valid will are:
1. You must be of legal age
2. The will must be signed by the testator
or by someone at the testator’s direction; in his, or her, presence.
3. Testator’s signature must be at the end
of the will.
a. wills that are
signed in the middle of a will will void the subject matter below the signature
4. Testator must
sign the will or acknowledge his earlier will in the presence of each
5. The testator must
publish the will. This means that the
testator will communicate to the witnesses that this is his last will and
6. There must be a
certain number of attesting witnesses.
This number of witnesses depends on your specific states laws.
7. The execution of
the will must take place within a certain period of time from the date the
first witness signs the will. For
example, if the jurisdiction has a 30 day period and the second witness signs
the will 40 days after the first witness the will will be void for lack of
Meeting these requirements is the first step to making a valid
disposition of your will. If your will
is validly executed it will be able to go through the probate process
successfully. In order for your will to
properly represent your intentions you will need to compile a list of
individuals, documents, and information in regards to your intended beneficiaries
and you assets.
The 10 main provisions of your last will and testament should include:
1. The document
title : LAST WILL AND TESTAMENT
2. Your name,
address, and the date of creation of the will.
You should state that you are of legal to create a will; are of sound
mind and body; that “this is your last will and testament revoking all previous
made wills and codicils”; and that you are not under duress or under undue
influence to create this will.
3. Your choice of
executor. You must include the name,
address and any other information that specifically describes your intended
executor. You should also designate a
“back up” executor in the case that the originally designated executor refuses
or is incapable of performing these duties.
If you have not appointed an executor then the court will appoint one
4. Your choice of
guardianship for minors. If you are a
parent one of the most important aspects of a will can be the designation of a
guardian for your minor children. In the
event that, upon your death, there are no surviving parents, or they are
incapable of raising children, the a guardian, and back up guardian should be
designated. If this is not accomplished
then the court will appoint a guardian based on the best interests of the child.
5. List the details
of your beneficiaries. This includes
family and friends that you intend to include in your will. When including beneficiaries, be as specific
as possible to avoid a dispute. For
example, the bequest of “$5 million to bob jones” will be inefficient,
especially if you have both a brother and son named bob jones. A better way to phrase this would be “$5
million to my brother Bob Jones residing at 31 estate st., Norwalk, CT.” A
bequest to non-living or vague beneficiary will be void for want of specifics.
“To my best friend bill” will not be a valid bequest; “to my wife” may distort
intentions, especially if the testator re-marries without changing his will;
“to my grandchildren” will only include the grandchildren of the testator that
are alive at his, or her, death.
6. You will need to
include all information pertaining to your probate assets. Probate assets are
those assets that are designated in the testator’s name. This includes all individually owned bank
accounts, automobiles titled in the testators name, cash, personal property
such as watches, furniture, electronics, etc.
Non-probate assets are those that are not included in your probate
estate and are designated in someone else’s name or in joint tenancies.
Examples of non-probate assets include life insurance policies, joint
tenancies, trusts, joint bank accounts, pensions, and Payable On Death
accounts. All probate assets that are
not disposed of in the testator’s will will become part of his, or her,
residuary estate and be divided through the jurisdictions rules on descent and distribution.
7. Designate your
specific bequests of your assets to the individuals named in your will. The bequests should be specifically written
so that correct bequest goes the correct beneficiary. For example, a bequest of “To my brother
Steve the painting hanging above the fireplace in the living room.” The testator may have intended a specific
painting but at the time of death the painting may have been moved to another
room. This may void the bequest. When dealing with the liabilities and debts
of the testator those debts will come out of the testators estate in a certain
manner. Every state has its rules for
satisfying debts through probate assets but the general order that assets will
be depleted is in this order: (1)
intestate & residuary property; (2) general gifts $5,000 to Steve); (3)
demonstrative legacies, a general gift from a specific source such as “$2
million from my bank of America savings account; if there are still debts to
paid after this then the debts will be satisfied through the sale of specific
bequests, “I devise my 56’ Chevy.”
8. Include your
specifics about your funeral arrangements; whether you want to be cremated or
buried; where you want to be buried; what clothing or items you wish to be
buried in; and any other details that may be important to you.
9. Sign the will at
10. Have your
witnesses sign that they witnessed and acknowledged that this your last will
and testament. Most states require at
least 2 witnesses. If one of your
witnesses is also a beneficiary under your will then they may be disqualified
from receiving under the will, depending on your jurisdictions rules. This may be saved by the interested witness
having the option of taking the lesser of what his specific bequest is, or his
share through intestacy. If an
interested witness is not an issue, or heir of the decedent then his signature,
as a witness, will void his bequest completely.
Another way to save a bequest is if the interested witness’s signature is
unnecessary. If the law of the state directs that 2 witnesses need to sign and
there are 3 signatures then the interested witnesses signature may be treated
as if it does not exist.
In addition to these basic steps the will should also include no-contest
clauses, specific requirements for the valid destruction of the will, and
incorporations by reference.
Incorporation by reference is a provision in a will that designates the
incorporation of the details of other documents into the will. For example, a provision that states “I leave
all the assets designated in a document in my safety deposit box to be
incorporated into this will.” Some
states do not permit incorporation by reference. You should consult with your estate planning
lawyer about your jurisdictions specific rules.