Although there are different types of wills, there are still certain standard requirements for a will be considered valid. Basically, the person creating the will must be at least the age of majority and of “sound mind,” meaning they have the legal capacity to create the will. A will should identify an executor to manage the will and handle the probate process. Each state will also have its own laws about how wills are signed and executed, including how many witnesses are required.
The basics on simple wills
Simple wills are most commonly used when all that is required is instructions on how to distribute modest assets from the estate to the named beneficiaries. As long as the nature of the assets is not too complicated, simple wills are more than likely enough to accomplish the task. Like all wills, a simple one needs to be in writing and should be typed instead of handwritten to avoid issues of eligibility. The basic elements of a will are the testator’s name, address and marital status and instructions regarding which property goes to which beneficiaries. The executor of the estate should also be identified, as well as a guardian for any minor children, if applicable. The testator and the witnesses are required to sign and date the will, as well.
How are testamentary trust wills different?
Testamentary trust wills are unlike basic wills because they include instructions to transfer a portion of your estate into a trust. Based on the provisions of the testamentary trust, your assets are distributed to your beneficiaries through the trustee who controls those assets. The most common example of a testamentary trust will is a spendthrift trust. Spendthrift trusts are often used in situations where a beneficiary is considered to be financially irresponsible for some reason. A spendthrift trust allows the trustee to distribute the trust assets gradually under specific conditions. The format of testamentary trust wills is often much like to that of a simple will.
What you need to know about joint wills
Joint wills are often used by spouses who want to leave their property to each other. The surviving testator inherits everything in the deceased spouse’s estate. Ultimately, when the surviving testator passes away, the estate that remains will be distributed to the beneficiaries chosen by the couple, pursuant to the provisions of the will. One important thing to remember is that a joint will becomes irrevocable once the first testator dies. The format of joint wills is also similar to a simple will.
Living wills are quite different from other types of wills
The purpose of a living will is completely different from simple wills, testamentary trust wills, and joint wills. The purpose of a living will is to provide detailed instructions about the type of medical treatment or life-saving measures you want to be used if you become unable to communicate those wishes for yourself. For example, a living will could state that in the event, you become terminally ill and unconscious, you do not wish to be put on a ventilator or a feeding tube, even if not using those measures would mean you would likely not survive.
The executor of a will should be identified in the will itself
One very important component of every will is the identification of an executor who should be a trusted individual who can make sure the provisions of your will are followed. The executor is the person ultimately responsible for managing your estate through the probate proceedings and making sure that your property is distributed to your beneficiaries, according to the terms of your will. An executor can either be a professional or a family member or friend.
You can decide which property the executor of your will can control
The first step in determining which specific property should be left to whom, is to create an inventory of everything you own. The next step is to eliminate all property or assets that are not required to go through probate in order to be passed on to your heirs. For example, retirement accounts and life insurance policies, which have named beneficiaries, are not required to go through probate before those beneficiaries can receive their share. Once you have a good idea about what’s included in your estate you can make specific bequests in your will. The more specific you make the terms of your will, the more straightforward and streamlined the probate process will be for your family.
Join us for a FREE seminar! If you have questions regarding wills or any other estate planning needs, please contact the Schomer Law Group either online or by calling us at (310) 337-7696.
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