Legally Speaking: Estate Planning and You, Part IV
First, identify yourself. While this may seem basic, it is critical that the will state clearly the name of the testator up front so that there is no question as to whose assets are being dealt with in the document. It is also a good idea to state the county and state of residence as this may affect the law applied when the will is being executed.
Second, state that you intend the document to be your last will and testament. In order to be valid, you must be able to establish that your will was made with testamentary intent. Including this statement establishes that you have the necessary testamentary intent to create this document. Additionally, state that the document revokes all earlier wills and codicils if you intend it to do so. Even if you don’t have an earlier will, this statement eliminates any claims that there was an earlier will that should also be considered. By eliminating the possibility of claims of additional wills, you can help to ensure that your estate is disbursed as quickly as possible. If you do want to incorporate a previous document into your will, incorporate it by reference and ensure that there are no inconsistent provisions in the two documents.
Thirdly, you must include provisions for the distribution of your property. It is important to provide for all possible contingencies when drafting your will. This includes issues such as survivorship and other changes in family situations. For example, a divorce will often change the way a will is read. In some states, a divorce will not make a will invalid but it does revoke all provisions in favor of the former spouse. Additionally, the birth, adoption or death of a child may affect how property is disbursed. You must also consider such factors as: If a child dies before you, do you want his or her children to get their share of your assets or do you want the property divided among your remaining children only? What if the child that didn’t survive you doesn’t have children? These are important possibilities to consider when making dispositions under your will. Clearly identify beneficiaries and property in the document.
Fourth, wills in all states must be witnessed in order to be valid. Some states require only two witnesses, while some states require three. A witness should not have a potential interest in the will. It is also important as to when these witnesses sign the will. Some states require that all witnesses sign in the presence of each other and the testator while other states require only that the witnesses sign in the presence of the testator.
Lastly, you must keep your will in a safe place and ensure that others know where to find it. If your will cannot be found, it cannot be executed. Therefore, you need to make sure that your will is in a safe place where it will not be destroyed and that there are people likely to survive you that will know where to find it. People will often leave their will in a safe deposit box or in a will safe at their attorney’s office.
Making a will is an important undertaking. Consult with an attorney in your own state to make sure that the will that you draft will be enforceable. By taking the preceding factors into consideration you can make a will that will distribute your assets as you wish with as little interference as possible.
The information contained in this article should not be construed or relied upon as legal advice. Tax laws vary from jurisdiction to jurisdiction. Consult an attorney who specializes in Estate Planning in your local area regarding the information contained in this article.