Wills are the most common way for people to state their preferences about how their estates should be handled after their deaths. Many people use their Wills to express their deepest sentiments toward their loved ones. A well-written Will eases the transition for survivors by transferring the property quickly and avoiding many tax burdens. Despite these advantages, many estimates figure that at least seventy percent of Americans do not have valid Wills. While it is difficult to contemplate mortality, many people find that great peace of mind results from putting their affairs in order.
Formal requirements for Wills vary by state. Generally, the testator must be an adult of “sound mind,” meaning that the testator must be able to understand the full meaning of the document. Wills must be written. Some states allow a Will to be in the testator’s own handwriting, but a better and more enforceable option is to use a typed or pre-printed document. A testator must sign his or her own Will, unless he or she is unable to do so, in which case the testator must direct another person to sign the Will in the presence of witnesses, and the signature must be witnessed and/or notarized. A valid Will remains in force until revoked or superseded by a subsequent valid Will.
Some legal restrictions prevent a testator from giving full effect to his or her wishes. Some laws prohibit disinheritance of spouses or dependent children. A married person cannot completely disinherit a spouse without the spouse’s consent, usually in a pre-nuptial agreement. In most jurisdictions, a surviving spouse has a right of election, which allows the spouse to take a legally-determined percentage (up to one-half) of the estate when he or she is dissatisfied with the Will. Non-dependent children may be disinherited, but this preference should be clearly stated in the Will in order to avoid confusion and possible legal challenges.
Some property may not be conveyed by Will. Property owned in joint tenancy may only go to the surviving joint tenant. Also, pensions, bank accounts, insurance policies and similar contracts that name a beneficiary must go to the named party.
A Will usually identifies a personal representative to perform the specific wishes of the testator after he or she passes on. The personal representative need not be a relative, although testators typically choose a family member or close friend, as well as an alternate choice. The selected representative should be advised of his or her responsibilities before the testator dies, in order to ensure that he or she is willing to undertake these duties. The personal representative consolidates and manages the testator’s assets, collects any debts owed to the testator at death, sells property necessary to pay estate taxes or expenses, and files all the required court and tax documents for the estate.
Choosing a Guardian
Testators who have minor or dependent children may use a will to name a guardian to care for their children if there is no surviving parent to do so. If a will does not name a guardian, a court may appoint someone who is not necessarily the person whom the testator would have chosen. Again, a testator usually selects a family member or friend to perform this function, and often names an alternate. Potential guardians should know they have been selected, and should fully understand what may be required of them. The choice of guardian usually affects other will provisions, because the testator may want to provide financial support to the guardian in raising surviving children.