Aside from a birth certificate, a will is possibly the most important legal document a person can have.
The first states your legal existence; the second fulfills your last legal wishes. Despite its importance, many people forego creating a legal will. While it can be uncomfortable to consider one’s own mortality and annoying to pay for a legal will to be created, it can be essential to the well-being of loved ones that a will is thought out, written and approved.
What is it?
A simple will is a basic legal document that describes the division of property and, possibly, the legal guardianship of dependents after the death of an individual. A person who has an active will is known as a “testator.” The person made responsible for ensuring a will is carried out is called an “executor.”
Five Parts to a Simple Will
- Declaration and identification of testator – The testator clearly identifies himself or herself by name, birthdate and any other necessary pieces of information to prove the owner of the will.
- Naming of executor – The executor is listed and made legally responsible for carrying out the will. A secondary executor should be named in the event the first is unable to fulfill his or her duties. Executors should be contacted by the testator to ensure they are willing to participate in such a role.
- Division of estate between clearly identified beneficiaries – Usually the most complex part of a will, this portion identifies which individuals are to benefit from the testator’s estate and details the property they are to receive. It also lists individuals temporarily responsible for managing property if a beneficiary is not yet able to inherit (e.g. too young).
- Naming of legal guardians for testator’s dependents – This passes legal responsibility for an individual’s care to a chosen party. This is usually the most contested part of a will. A new guardian must be willing to accept responsibility of care and be approved of by a court. This is typically determined by the “probate” court handling the will.
- Signatures of testator and legal witnesses – This is the final part of a will and ratifies the document. In the past, witnesses were called upon to attest to the legality of a will, which because a source of problems if the witnesses had died. Presently, the witnesses’ signatures are regarded as legally binding and are themselves typically witnessed by a legal representative.
What Happens After Death
Following the death of a testator, a will must be legally declared valid and its appointments carried out. This process, known as “probate,” can be carried out by a court or by a court appointed individual. When a court handles the entirety of a will, it is called “formal probate;” when the court approves a will and then passes it on to a legal representative it is called “informal probate.” Informal probate is common for simple wills that go unchallenged and do not require the declaration of a new legal guardian.
The probate process has some fees that are levied on the value of an estate (typically a small, fixed percentage of the property being passed on). Some individuals avoid these probate costs by routing property through a “trust” or “joint-ownership” plans; however, a will is still necessary to handle undeclared property.
What if No Will is Made?
When an individual dies without a will, they are referred to as dying “intestate.” If this is a case, probate still occurs and a court determines the division of property according to the intestate statutes of the state where the deceased had lived.
Intestate is not desirable, as a court gets to express its own judgment in how property is divided regardless of family wishes. Since intestate statutes also give the court the responsibility to determine legal guardians of dependents, having a legal will should be especially important to parents with young children.
Creating a Will
There are an abundance of services for individuals to create wills. Some of these services are “do-it-yourself” processes or instant online wills from legal websites. Such wills should be created or used with extreme caution; only an experienced lawyer can create a detailed will tailored to fit your exact needs.
Having a will is essential to planning the future of your loved ones and can be key to your own peace of mind. It is also just one of many ways to protect your assets and plan for your finances.
