06 Mar Preparing a Will
A will or last will and testament, as it is sometimes called, represents the foundation of the estate planning process. Suffice to say, most people are familiar with the basics of creating a will and its legal impact on the estate planning process, however most people lack an understanding of some of the more complex areas of creating a will and how a properly drafted will can benefit an estate.
Before discussing the more nuanced details surrounding the process of preparing a will it is important to review the basics of writing a will. Understanding the basics represent the first steps to using a will as an estate-planning tool.
Will Basics
A will is a written document prepared at the direction of a testator (the maker of the will) to provide direction for the distribution of your estate (assets and other property) upon your death. With a will, your estate will be distributed to your heirs and beneficiaries (those receiving the proceeds from your estate).
After your death, an executor (appointed by you to manage your final affairs) will oversee the process of making sure the terms and conditions of your will are followed. In some cases, a probate court may also oversee the process in conjunction with the executor. With the basics in mind, the process of making a will involves two stages, planning and execution.
Preparing A Will
Before you actually prepare a will, planning is one of the most important parts of the process. In planning your will, it is important to consider how you want your affairs to be handled.
Think about the needs of your surviving family and specific requests you may have regarding how your estate is to be handled. All of this information and any specific instructions must be clearly established in your will. It is crucial that nothing be left to interpretation.
Further, it is important that a will have a certain amount of flexibility. This flexibility should be able to account for changes in heirs and beneficiaries and changes in assets. If a will fails to state your wishes clearly or account for changes, this will ultimately lead to confusion, potential litigation and often extra legal costs because of the will being part of a lengthy probate process.
Executing Your Will
Executing a will involves the process of getting all of the terms of paper and legal formalities completed. For a will to be legally valid, there are certain requirements that a will must meet.
For example, a person making a will must be 18 years old and be of sound mind and memory. California recognizes two types of wills: attested wills and holographic wills. An attested will is in writing and is signed by the decedent and duly witnessed. A holographic also must be in writing and is signed by the decedent, but the document need not be witnessed, rather material portions of the will must be in the decedent’s handwriting and reflect the decedent’s intent
Lastly, it is important to note that people who are beneficiaries under the will cannot serve as witnesses. Therefore, if someone is to receive property in the will, he or she cannot be a witness.
A will may be revoked or changed at any time before the death of the maker. However, this usually requires a written change with the same witness requirements as the original will.
Potential Problems When Writing a Will
A will can provide peace of mind by offering clarity and direction to your heirs. However, if not properly prepared a will can create more problems than the problems they prevent. Some problems can arise in the process of making a will.
The will may be unclear in the directions it provides to heirs this can result in confusion and unnecessary litigation costs as heirs or other beneficiaries may contest how the estate is being distributed.
Further, the will may not have been properly executed, or modifications to the will may not have been carried out properly. The net result of not understanding how to prepare a will is often confusion and unnecessary costs for the decedent’s estate.
Understanding the basics of preparing and executing a will can reduce the risk of confusion and litigation over your estate in the future.
Will Planning Legal Advice
An attorney experienced in planning and drafting wills can provide legal advice regarding what to expect from a will, and the steps needed to protect estate assets. Further, experienced counsel can provide advice as to how to draft a will to account for asset accumulation and changes in heirs and beneficiaries.
Finding an experienced attorney for wills offers a measure of protection for those administering an estate. Further, it can reduce a great deal of uncertainty for those who wish to pass on assets to loved ones knowing that a will has been properly prepared and will be effective when needed.