WILLS: BASIC ELEMENTS AND WHY EVERYONE NEEDS ONE?

Sep 9, 2013

Without a will, the laws of the state where one last resided will determine who receives the decedent’s property. State law will determine who sets what share of the estate, when to deliver the property, and how it will be taxed. If there are no heirs, then the property will go to the state government. The wishes of the owner may play a small role or no role at all in distribution of assets. Thus, to the question: who needs a will? The answer is everyone needs a will.

Most people would clearly choose not to have property distributed by the state under a formula that bears no relationship to one’s choices and preferences. Many individuals make the mistake of assuming they have too little wealth to make the effort and expense of a will worthwhile. Wills are useful for the crucial role they play regardless of the size or contents of an estate; their importance derives from their role in making known owner’s wishes for distribution of property owned in life.

To be valid, a will must be a written document made by an adult of sound mind. The maker must sign it in the presence of two or more adults. A will requires a competent maker, whose intention is to dispose of property. The will can name a person to carry out, or execute, its terms. Many states have relaxed the formalities of making a will. In some states, evidence of the maker’s intentions is sufficient to prove a will when one or more parts of the formal requirements are missing.

It is useful to note that a will is not a “Living Will”. A living will is a document that controls decisions needed during life but on which one may be unable to act. This, for example, would apply to medical decisions if one were incapacitated and unable to understand choices or communicate decisions. One also needs a living will, but it does not relate to property after death.

Because state laws require some technical formality, one needs professional assistance to ensure that the document will pass court review. Many states still have strict requirements for witnesses and to the mental capacity of the maker of the will. One can create a will informally, however, since the goal of a will is to reduce later confusion; professional assistance adds certainty.

A will is an effective beginning to an estate plan. When considering a will, it is important to gather information on all of the property owned. This is the perfect time to begin work with an estate-planning professional. An estate plan can maximize benefits to heirs, and protect the estate from creditors and reduce taxation to a minimum.