Questions About Wills
1. What are the requirements for a WILL to be valid?
The requirements for a valid will vary somewhat by state, but the general requirements include:
- Legal age. You must be at least 18 years old to make a binding will in most states. However, in many states, the age limit is as low as 14 or 16. Except for emancipated minors or a minor has acquired a large inheritance.
- Testamentary intent. This means you must clearly express your intention for the document to function like a Will. It should be executed voluntarily. If a person is forced into creating or signing a Will under duress, it may be considered invalid.
- Legal or Testamentary capacity. This means you must be of sound mind and are aware of your actions and the implications when the Will is created. For example, it’s a common misconception that someone with dementia can’t create a legally binding will, but they can if they are lucid when the Will is made. In these cases, though, a doctor’s letter confirming mental competence is a wise decision.
- Signatures. The Will must be signed free of fraud, duress, or coercion. A representative can sign on your behalf if you are physically unable to sign the Will.
- Witnesses. In most states, two adult witnesses must also sign the Will. In some states, the witnesses must be disinterested, which means they will not benefit from the Will.
2. After a will is created, can it be changed?
It’s essential to keep a will up-to-date. If you wish to make changes to your Will, you can create a new Will or use a codicil (a supplement) to add revisions to your existing Will.
Either a codicil or a new will require a signature and the signatures of two (or more) witnesses to be legally binding.
A codicil is a good option if you want to make small changes. However, destroying the old Will and creating a new will can clear up confusion, and it’s more appropriate for more significant changes like changing your beneficiaries.
3. Should a Will have a separate list that inventories and bequeaths specific assets?
In general, it’s a good idea to create a list of specific items that will be bequeathed and to whom unless you want to leave all of your property to one person — or there are only a few items you wish to endow separately.
When making gifts of specific items, it’s essential to describe them as clearly as possible. The more detail, the easier it will be for the executor to identify and locate the property. In addition, by listing specific assets and personal property in your Will, you can be sure property is passed on as you like. This can also help avoid disagreements among heirs and beneficiaries, which should be seriously considered.
4. What happens if a person dies without a Will?
When someone dies without a will, they have died “intestate.” This means the probate court will appoint a personal representative or administrator to identify estate assets, receive claims, pay creditors and taxes, and distribute property according to the state’s laws of intestate succession. The cost of all this can be from 2% to 7% in many cases. More conflicts in the family, the more appeals in the Court and more gains for the Attorneys.
Creditors have a limited period to claim their money; if they miss this four months window, they lose the opportunity to get their money. There are tricky ways to handle credit claims, and you need to consult the Probate Attorney or a CPA. Life insurance policies and retirement assets go to pre-designated beneficiaries.
If the decedent was single, the estate goes to the children. If the decedent is married, the spouse gets 100 percent of the community property. It gets complex when the decedent has children from previous marriages. It all varies case by case. When real estate assets are located in different states, the local state laws supersede.
5. What happens if a Will cannot be found?
It is not uncommon to be in shock when the family cannot locate the Will. It is time to ask around; family members, old friends, family attorneys can be beneficial. Sometimes family or friends have a photocopy or picture of the Will. The judge may ask many questions and may ask for proof of the destruction of the original Will.
Also, reachout to the Attorney, CPA, or the Financial Planner of the family; they might give you a clue where it could have been placed.
On the other hand, start looking around in the decedent’s residence, which could be under the bed, hidden in the closet, drawers, or the pocket of an old coat or the car or boat.
The next effort should be to reach out to the bank and arrange to get the safe deposit box. There are procedures to access the safe deposit box. It is only possible when a Personal Representative has been approved by the Court.
6. Who can or should draft my Will?
A Will can be drafted by anyone sixteen years or older and of sound mind. It can be done with an attorney’s help, using will-maker software or blank will forms, or your own. Handwritten Wills are called holograph Wills. State on the document it is your Will; it’s a good idea to state there is no previous Will. If there are old versions, they should be destroyed.
Name the people you want to inherit your property and possessions. Choose someone in charge of executing the wishes, and have two witnesses sign the Will. The beneficiary cannot be the witness to the Will.
It is not necessary to use a lawyer to draft a Will, but it is good to have the Will prepared according to state law. By drafting a valid Will, a person should ensure the personal property and possessions are divided according to the wishes. When possible, sign the Will in blue ink to easily distinguish it from the copies. It is a good idea only to sign the original and not all the documents.
7. Is an out-of-state Will valid?
As a general rule, a will should remain valid even after moving to a new state. However, states have laws on what makes a Will valid and legally binding. These specific legal provisions can make an out-of-state will invalid, depending on the laws in each state. Therefore, even if the Will is valid in the new state, certain parts of the Will may become void or need to be changed.
For example, Florida requires that the personal representative be related by blood or a degree of marriage or, failing this, be a Florida resident. Florida doesn’t recognize holographic (handwritten) or nuncupative (oral) Wills, but most states do.
8. Must a will be read aloud to the family by an attorney or personal representative?
The “reading of the will” depicted in many movies, and television shows is primarily fictional and never happens in modern times. This practice was only common in the past when many people were not literate. No state requires that the Will be read aloud to anyone. However, once the Will is filed with the probate court, it becomes a public record, and anyone can read it, including the general public. So be careful what you write in the Will; it can be public someday!