A Last Will and Testament is one of the most important legal documents a person can create during his or her lifetime. If a person dies without a Will they are said to have died “intestate” and state laws will determine how and to whom the person’s assets will be distributed. If a person dies without a Will the beneficiaries can not dispute the court’s distribution of that person’s estate under the intestacy laws. Even if that person expressed different wishes verbally during their lifetime the statutes control the distribution. With a valid Will, a person can legally determine how their property will be distributed and to whom. Most intestacy statutes distribute a deceased person’s assets between a surviving spouse and their children or to only the children if there is not a spouse. If there are no surviving children the assets then are generally distributed to extended family members. Making a will also gives you the opportunity to name an executor (the person responsible for distributing your assets) and a legal guardian for your children. A Will must meet the legal requirements set forth by the state in order for it to be valid. Most states will also accept a Will that was executed in another state if the document is a valid Will under that state’s law. The general requirements for a valid Will are usually as follows:
• the document must be written (meaning typed or printed),
• signed by the person making the Will (usually called the “testator” or “testatrix”, and
• signed by two witnesses who were present to witness the execution of the document by the maker and who also witnessed each other sign the document.
A Will must be in writing, signed by the testator and by two witnesses. If the testator cannot physically sign his name he may direct another party to do so. Each witness must sign the Will in the testator’s presence. In Utah, an individual generally competent to be a witness may act as a witness to a will. Generally, it is recommended that the witnesses to the Will be “disinterested”, which means that they are not a beneficiary of the Will. However, in Utah the signing of a Will by an interested witness does not invalidate the Will or any provision of it. If a Will’s authenticity is unchallenged it may be probated in a simplified procedure if it has been self-proven. Witnesses to a self-proven Will are not required to testify in court because the court automatically accepts a self-proven Will as authentic. To self-prove a Will the testator and the witnesses must swear in an affidavit before a notary to the authenticity of the Will. The affidavit should be part of the Will or attached to it. Make sure they are all provided for individually in your will—it sounds basic and obvious, but don’t name just one child and assume the court will automatically grant custody of all of them to the same legal guardian. This may be a particular concern if you have a child with special needs. If you want your children to stay together, specify this in your will. In fact, if this factor is more important to you than the legal guardian, say so that is, if for some reason the court does not approve your choice of guardian or your chosen guardian cannot serve but you would still like your children to stay together with a different guardian as named by the court, make this preference clear in your will. Especially if you prefer your children to stay together, is your chosen guardian in the position to care for all of your children, emotionally and otherwise? Does he or she have other children as well? How will the families blend? If your preference is to have your children raised in a two-person home, be sure to name each member of the couple as a co-guardian. For example, if you would like your sister and brother-in-law to jointly raise your children, include them both as co-guardians. Many people immediately think of their own parents for guardians of their children, but consider the age and general health of your chosen guardian and whether he or she will be able to handle the physical demands of raising children. If your children are nearing the age of majority, this may not be as much of a concern, but if you have younger children, it could be a very important consideration. Many parents would prefer that their children be able to stay in their same school or at least school district should something happen to them; either way, it’s important for you to consider where your child would be attending school while living with his or her new guardian. As a parent, you know that raising children is expensive, so while ideally, you will have prepared financially for your children ahead of time with estate planning, be sure to consider your chosen guardian’s financial resources as well. You probably would prefer a guardian who shares your basic values and goals as a parent so that your children will be raised similarly to the way you would have raised them. If religious doctrine or alternately, not teaching religious doctrine is particularly important to you, you should consider this when choosing a guardian. Think also about whether they can handle the responsibility of raising your child as well as what kind of parent they would be—are they patient, kind, and mature? Do they already get along well with your children? Before you make this decision and include a named guardian in your will, sit down and talk with your choice. First and foremost, you want to make sure that he or she will agree to becoming the guardian of your child should anything happen to you, but it is also useful to discuss all the considerations discussed above so you know for certain the answers to those questions. Part of your job as a parent now is to decide who you would want to care for your children in the event of your death. Imagine if writing a last will and testament were a pre-requisite to graduating from high school. The graduate walks across the stage, hands the completed will to the principal, and gets the diploma in return. It might sound strange because most 18 year olds have little in terms of assets but it’s a good idea for all adults to draft a last will and testament. Graduation from college is another good milestone to use as a reminder to create an estate plan. If you haven’t created a will by the time you marry or are living with a partner in a committed relationship then it’s fair to say you are overdue.
Reasons To Complete A Last Will And Testament
• You are entering the military: Anyone entering the military, at 18 or any other age, should make sure his or her affairs are in order. Even for an 18-year-old, that means creating a will and other basic estate planning documents like a health care directive and powers of attorney.
• You received an inheritance: You may not think of the inheritance as your asset, especially if it is held in trust for you. But, without an estate plan, the disposition of that money will be a slow and complicated process for your surviving family members.
• You own an animal: It is common for people to include plans for their pets in their wills. If the unthinkable were to happen and you died unexpectedly, what would happen to your beloved pet? Better to plan ahead for your animals in the event of your death. You can even direct the sale of specific assets, with the proceeds going to your pet’s new guardian for upkeep expenses. You want to protect your family from red tape. If you die without a will, your family will have to take your “estate” (whatever money and possessions you have at the time of your death) through a long court process known as probate. If you had life insurance, for example, your family would not be able to access those funds until the probate process was complete. A couple of basic estate planning documents can keep your estate out of the probate court and get your assets into the hands of your chosen beneficiaries much more quickly.
• You have social media accounts: Many people spend a great deal of time online, conversing with friends, storing important photos and documents and even managing finances. Without instructions from you, will your family know what to do with your Facebook account, your LinkedIn account, and so forth?
• You want to give money or possessions to friends or charities: When someone dies without a will, there are laws that dictate who will receive any assets. These recipients will include immediate family members like parents, siblings, and a spouse. If you want to give assets to friends or to a charity, you must protect your wishes with a will.
Documents to Have Alongside Your Last Will and Testament
Filling out your last will and testament form is essential, but it’s not the only document you’re likely to need. You might also think about:
• An advanced health care directive or medical power of attorney: This names someone you trust to make decisions about your health (would you want to be on life support?) if you’re not able to do so yourself.
• Living will: Similarly, a living will records your wishes for your medical care if you become incapacitated. Are you religiously opposed to blood transfusions? Do you have specific rules you’d like your caretakers to follow?
• Durable power of attorney: A durable power of attorney names someone to manage your finances if you’re incapacitated and can’t do so yourself.
Duties of the Executor of a Last Will and Testament
When most people create their Last Will and Testament, they nominate a spouse, partner, child or parent as the executor of the Will without giving much thought to what the position of executor actually entails. However, once you understand the complex nature of the duties of an executor, you may decide to give a little more thought to the choice of the executor. State laws determine which estates are required to pass through formal probate and which estates can be probated without the need for formal probate. If an estate requires formal probate, the duties of the executor will be numerous. Not surprisingly, the larger the estate and the more complex the assets or Will are, the more difficult the job of executor will be. The job of executor starts by petitioning the appropriate court to open the probate of the estate. Along with opening the probate, all beneficiaries named in the Will, all known creditors, and the public at large are typically required to be notified of the probate. The executor is then required to identify value and inventory all estate assets. This process may require expert appraisals and requires a report to be made to the court when completed. Creditors of the estate are then given a specific time period to make claims against the estate. The executor must review the claims and approve or deny them accordingly. Any challenges to the Will by heirs or creditor disputes are also handled by the executor. Taxes, both of the decedent and the estate, must be filed by the executor and any tax obligations paid out of the estate assets. The probate of even a moderate sized estate can take months to conclude. Only when all assets have been accounted formal creditor claims handled and paid and all taxes filed and paid can the executor begin to transfer the remaining assets to the beneficiaries under the Will.
Advantages of a Last Will and Testament
• You can leave property to those you choose: One of the greatest advantages to having a will is that you can choose who will receive what from your estate. Without a will, your estate is subject state laws of “intestacy.” That means the people you would like to benefit may receive little or nothing, while others with whom you’re not as close receive the bulk. Accordingly, if you are not married but have a long-term partner, he or she could receive nothing under such laws. Alternately, if you are in the process of a divorce but it has not been finalized, without a will, your estranged husband or wife could make a claim on your estate.
• You can name a guardian for children and provide for them: A will allows you to choose a guardian for your children and set aside funds to make sure of their support and comfort.
• You can create a testamentary trust in the will: You can create a testamentary trust within a last will, which is created upon your death and used to hold property for another person’s benefit, such as your children.
• You choose your executor: The executor is in charge of making sure all your bequests are carried out. A will gives you complete control over deciding who this will be. The executor should be someone who is willing and able to handle everything that is involved with the closing of your estate. Without a will, a court appoints someone to administer your estate, and that person may not be someone you would choose.
• You can plan for personal matters: From burial arrangements to pet care, you can use a will to dictate what type of services, if any, you would like, and other personal matters.
• You can amend it: Circumstances change, and so can your will. Through a “codicil,” you can amend any provisions of your will at any time so that they better reflect your most current wishes and assets.
• You can revoke it: If you find that a will no longer represents your interests, you can revoke it entirely and start over.
• Doesn’t have to be expensive: Creating a last will can be surprisingly affordable, particularly if your finances, assets and beneficiaries are fairly straightforward.
Disadvantages of a Last Will
• Possible challenges: Although it’s possible that someone could challenge your will, if you have followed all of the proper procedures in its creation, your will and its provisions will likely stand.
• May need to go through probate: If you have assets that pass under your will worth more than a certain amount, your will must be filed for probate, the procedure through which a decedent’s assets are distributed; this can be a long process, which can, in turn, be costly for the estate. In contrast, a living trust does not require probate.
• It is public record: A will becomes public record once it is filed for probate, which means anyone can search for it and see its contents.
• May not fully address tax concerns: A will that is not carefully planned out could leave your estate open to paying large state and/or federal estate taxes or your beneficiaries to paying hefty inheritance taxes.
Legal Assistance
Individuals who are considering drafting a trust or a will may wish to consult with an estate planning lawyer. He or she can explain the advantages of using a trust as well as a will. He or she can make recommendations based on the specific considerations of the client. He or she may even recommend using both documents, such as by using a pour-over will that places any property owned at the time of the testator’s death into the trust.
