HOW TO CREATE A LAST WILL AND TESTAMENT

 

 

 

A will is a formal, legal document which states how you want your property distributed on your death. 

 

If your estate is a simple one, you may write your own will. However, it is best to consult an attorney.  Forms are available on line or in book stores. Use these forms only as a guideline.  Make sure the form complies with your state’s law.  For example, don’t use an Illinois form if you are residing in Indiana. Writing your will helps you to clarify your thoughts.  Hire an attorney to review your will to insure that it complies with your wishes. 

Where To Get Will Forms On The Internet

Forms are available on line without cost.  Conduct a search of legal aid web sites in your state to obtain these forms for free.  For example, Illinois Legal Aid provides self help and forms on many legal topics. http://wwwillinoislegalaidonline.org

 

How To Find An Attorney

First, ask your family, friends or co-workers for referrals.  Second, contact your city, county or state bar association.  It maintains a referral list of attorneys in various practice areas.  Third, contact law schools in your area.  They operate legal clinics where law students, under attorney supervision, assist clients with their legal needs.  Finally, search the internet. 

 

Many legal organizations assist moderate and low income persons with legal problems and issues.  The Center for Elder and Disability Law in Chicago, Illinois is one such organization.  http://www.probonocdel.org

 

What If You Don’t Have A Will?

If you don’t have a will, your property will pass by intestate succession under the probate act of your state.  For example, in Illinois, if you die with out a will, and don’t have any children but are survived by a spouse, your widow or widower will get your entire estate.  If you are survived by a spouse and children, grand children or great grand children, then your spouse will receive one half of your estate and the remaining one half will be divided equally among the children, grand children and great grand children. If no surviving spouse, then the entire estate goes to your children to be divided in equal shares.  If there are no spouse or surviving children, then the estate is divided equally between your parents, brothers, sisters and their descendents. 

 

In your will, you can leave anything you want to any person or entity you wish.  In Illinois, there is one exception to this rule.  You cannot disinherit your spouse.  If you do so, your spouse can renounce your will.  If your spouse renounces, she or he can receive one half of your estate.  If there are children, your spouse can get one third of your estate. 

 

How to Write the Will

The comments below are general guidelines based on Illinois law.  They are not a substitute for seeking legal advice.

 

Your will must be in writing.  Title the document “Last Will and Testament”.

 

In the first paragraph, state your full legal name and your address.  Date the will.  In addition, state that you are making the will with sound mind and memory and under no duress or undue influence.  

 

Then make a list of the property you have and to whom you want it to go.  Make your paragraphs clear, concise and simple. 

 

Sign the document.  Two witnesses must witness your signature.  They should be people who know you and who testify that you are of sound mind.  They could be friends, relatives or co-workers.  They must be people who will not gain anything from your will.

 

In your concluding paragraph state that two witnesses are signing to declare that you are of sound mind and they are attesting to this.  Also, state that these witnesses are not gaining anything from the will.

 

Appointing An Executor

A will requires that you appoint an executor.  Choose your executor carefully.  Sheor he should be younger than you and in good health.  After all, you want her or him to survive you so that she or he is able to carry out the duties of executer.

 

Choose someone whom you can trust and who is intelligent and has some business savvy. 

 

Upon your death, your executor will file your will with the clerk of the probate court in the county where you resided. A judge will review your will to see that it is properly written and executed.  If your will complies with the probate act, the court will issue “Letters of Office” to your executor allowing her or him the authority to carry out your wishes.  The executor will also pay any debts incurred by your estate.  

 

How to Revoke A Will

A will may be revoked by burning it, tearing it, or writing “canceled” on it. You may write a later will which specifically states that the earlier one is revoked.

 

You may also write a simple statement saying that you are revoking your will.  This statement must be written with the same formality as the will including two witnesses who witness your signing of this revocation.      

 

            Codicils To Wills

Once written, if you want to keep your original will in tact but wish to add a few minor changes, draft a “Codicil”.

 

The codicil is drafted with the same formality as a will.  In the codicil, state that you have executed a will and refer to it by date.  State that the will is still valid, and that you are of sound mind and memory and under no duress or undue influence.  In addition, state that you are drafting a codicil to make minor changes to your will.  List the minor changes.   Finally, provide two witnesses who witness your signature on the codicil.  These witnesses cannot take under the codicil.

 

Send copies of your will, revocations and codicils to your executor. Keep copies for yourself.  Your attorney may keep copies as well.  

 

Naming Beneficiaries Instead Of Will

If you have a house or bank account, you may wish to put it in ‘joint tenancy”.  This allows you to name a person who will get the property upon your death.  Consult an attorney to determine if it is better to have a will or to hold property in joint tenancy.

 

Final Remarks

Nobody wants to think about death or to plan for it.  However, you must do so thoughtfully, carefully and objectively.  Prepare a will or make some plan for how your property will be distributed on your death.  After all, you work hard for your property, money and possessions.  Maybe it has taken you a lifetime to build your nest egg.  Don’t let it go to the county or state because you failed to make a will.