Introduction

The process of writing a will can be stressful and uncomfortable. However, it is a necessary evil. Every adult should have a will drafted and safely stored in case of his or her death. This not only makes sure that items from the person’s estate are distributed as the testator, will writer, wanted, but it also helps to reduce conflicts and confusion during probate. This article will go over the basics of drafting a will including what people need to be identified, what probate is, what makes a will valid, and what needs to be included in a will.

What Makes a Will Valid

The legal restrictions that govern the execution of your last will and testament will vary from state to state. However, there are a few basic elements that must be present to make a will legal. First the testator, the person who the will is for, has to be at least 18 years old. If the person is 17 years old, married, and of sound mind they may also draft a legally enforceable last will and testament.

The second requirement is that the person has to be of sound mind. This means that they have to know that they are writing a will, and they have to understand that the document will be used to distribute their property in the event of their death. They also must be lucid enough to know what property they own, who their loved ones are, if they have any dependents, etc.

They must also follow the state legal requirements for writing a will. The requirements set out in this test for validity will vary from state to state, and legal requirements for multiple states may be applicable if the testator owns property in more than one state. If this is the case, it is highly recommended that legal counsel be sought when drafting a will to make sure that all legal requirements are met.

Finally, a statement must be made within the document that attests that the testator knows and intends for the document to be their last will and testament, and that they intend for it to be enforced as such after they pass away.

The People That Need to Be Identified

When you are drafting a will it is important to identify four groups of people: the testator, the executor, the beneficiaries, and guardians.

First the testator, or the person who the will is for. Use your full legal name and any aliases that you may also be known by. Your name should be at the top of the document in a statement similar to, "This is the last will and testament for John Simon Doe drafted on (Date)." (The date will help you determine if the draft in your hands is the most current version of your will. You may want to write down in a ledger or other database when you make revisions to your will so that you know which version is the most current.)

The second person, or people, that need to be identified in your will is/are your will’s executor(s). This person/people will be in charge of making sure that your estate is distributed according to your last wishes. They will be the ones who talk to the probate lawyers, and they will be doing the paper work, and defending your will in court. The people that you select should be able to handle these responsibilities as well as be willing to follow your wishes.

The third group of people that needs to be identified in your will is your beneficiaries. You will need to identify what portion of your estate, or what items from your estate that each beneficiary receives. Beneficiaries can be anyone that you choose and a beneficiary can even be an organization. There are tax benefits in many states for pledging portions of your estate to not-for-profit agencies after you pass away. You get to claim the tax-savings benefit while you are alive, and the asset doesn’t transfer to the organization until after you have passed away.

Finally, if you have minor children you will also need to identify a guardian or guardians to care for your children until they are 18 years old. Distribution of your estate to minor children will probably need to be done through a trust fund situation with the guardians acting as trust agents. This means that while the children are underage, the trust agent will distribute funds from the trust account as they see fit to meet the needs of the children. However, once they are 18 years old the children will gain control of the trust fund and they will be able to use the money as they see fit.

What Needs to Be Included in a Will

There are several things that you will need to address in your will. First you will need to make a statement of your last will and testament at the beginning of your will. This should identify who you are, that you are of sound mind, and that you wish that this document be a legal representation of how you want your assets to be divided, and how you wish your final debts and taxes to be handled.

Example Clause: This is the last will and testament of John Simon Doe, August 18, 2010. It contains my wishes for the handling of my estate in the event of my death, including how my assets should be divided, who should care for my minor children, and how my final debts and taxes should be paid.

The second clause in your will should identify the Executor of your will. This person will act as your agent, and they will be required to follow the instructions provided within your will regarding to how your estate is to be divided, and how legal issues should be handled. This clause may identify as many people as you wish, however, to avoid conflicts and confusion you should select an Executor that is capable of handling the responsibilities associated with this position, and who will also follow your wishes.

Example Clause: For the purposes of executing my will I name Jane Elizabeth Doe as the Executor of my last will and testament. (You may want to include contact information within this clause as well, to help in locating the person upon your death.)

The next issue that you will want to address is guardianship of your minor children. You will need to first identify who the minor children are and then identify a person, or people, to act as legal guardians of your children until they are 18 years old. If the living parent is not identified as the legal guardian, you will need to include a statement that explains this decision in case that the living parent contests the will and files for custody.

Example Clause: In regards to my minor children Catherine Allison Doe, and Marcus Edgar Doe, they should remain in the care and custody of their father, Gregory Allen Doe, in case of the death of the demise of their mother, Jane Elizabeth Doe. In the case of their father’s demise, full custody will remain with their mother. In the event that both Gregory and Jane Doe are deceased, custody of the minor children will be transferred to Janet and Paul Frame, 123 North Street, Any City, State, USA. (Again enter and update contact information to make sure these people are easily located in the case of your untimely death.)

Once these main issues have been addressed you can go on to the distribution of your assets to your beneficiaries. If you are married the will should contain a clause that transfers all assets to the living spouse, and a second clause that transfers assets to other beneficiaries in the event that both spouses have passed away. This will help protect the living spouse in case other relatives try to inherit property and assets after the death of one of the spouses.

If you are single and have children, then most likely you will be leaving all of your estate to them through an equal distribution. To do this you can simply state that you leave you 50% of your estate to Child A and 50% of your estate to Child B. However, if you want to leave other items, or percentages of your estate to other people you will need to specify the exact distribution in this section of your will.

If you have any pets or livestock you will need to address them in your will as well. Most states define pets as personal property so you will need to leave them to someone who is willing to care for them. You may need, or want to leave money to help pay for their care.

One of the last things that you will need to address in your will is how your final debts and taxes should be handled. If you have an accountant or attorney that has handled your affairs in the past you include a clause in your will that assigns these last duties to them. The costs associated with these final services can be negotiated prior to your death in this situation, and may even be a pro bono situation or a reduced rate depending on your professional relationship. However, if you do not have an accountant or attorney, you will need to give your Executor instructions on how these things should be handled. In most cases, your final debts and taxes will be deducted from your estate before distributions are made to beneficiaries. The costs associated with taking care of these final issues can be reduced by having a plan in place to take care of things before you pass away.

Revisions can be made to your will at any time before your pass away. Who you assign as Executor and Beneficiaries do not have to remain in those positions if your situation and relationships change. If you want to make a change, you simply make the change on your document and date the revision accordingly. It is highly recommended that your review and update your will at least every 5 to 10 years, and especially after a major change in your life such as a marriage, death, divorce, birth, or change in financial position.

Probate

Probate is when your will goes to court to determine how your estate will be distributed. This is a normal and required activity that makes sure that your estate is distributed according to the laws of the state and according to your wishes. The court first examines your will and determines if it is legal and valid. If it is established as valid then the distribution of property is done according to the instructions outlined in your will. If your will is not valid then the court will proceed to take actions that determine the best way to distribute your assets. To reduce the costs associated with probate make sure that your will is legal and valid and that someone, other than you, knows where to find it in case of your death.