How to Prepare a Successful Will
Do you have a will
Importance of a Will
A will is a legal declaration by a person (a Testator) outlining how he or she wants property distributed at death and identifying an executor who will manage such distribution. Wills are governed by State Laws. A will prevents complications that can arise regarding distribution of assets after death. Everyone should have a will.
A will does not have to be complex. A will can be single paged and very simple depending on the types of assets or property owned by the testator. Wills written by individuals with numerous assets and young children may be more complex. Some wills may entail the appointment of trustees and establishments of trusts for young children.
A testator can ensure that many persons are protected under a will or he or she can disinherit children who the testator does not think are entitled to proceeds under the will.
The testator may also provide for his or her pets in his will and determine how specific assets should be distributed. For example, Leona Helmsley (the Queen of Mean), the famous wife of the Harry Helmsley (Real Estate Tycoon and Businessman) was able to set aside large amount of monies under her will to care for her beloved pets.
A successful will should be written in a way to provide for after born children. If you die without leaving a will, a court will usually appoint an administrator for distribution of your assets. The court usually appoints administrators in the following order of priority; a surviving spouse, your children, grandchildren if any, your mother or father followed by any other person entitled to distribution under the will. To prevent the court from making this decision for you it is best to make a will.
The most common type of will is the written will. This type of will is accepted in all states of the Union.
A Validly Executed Will Meet these Requirements:
Publication of the Will
Signature of Testator
Signature in Presence of Two Witness
Two Witnesses Attesting
Testator Signed at End of Will
Requirements of a Validly Executed Will
A validly written will has the following legal requirements:
- The testator must sign his or her will. The signature does not have to be legible. The testator may make any mark that identifies him or her.
- A testator must sign his or her will in the presence of each witness. The witnesses must be of legal age and ideally should not be beneficiaries under the will. Depending on your State, witnesses who stand to inherit under the will may not be entitled to an inheritance if they also act as witnesses. Other beneficiaries may challenge distributions to witnesses who are entitled to distributions under the will. A frequent contention when making these challenges is that the witness exerted undue influence on the testator. One witness does not necessarily have to sign in the presence of another. If the testator signs in the presence of one witness first, he must later acknowledge his signature in the presence of the other witness.
- The testator must sign his name at the end of the will. Words following the testator’s signature are usually ignored. If this is not done the will may be invalidated, especially if items written after the signature are deemed to be so material and important.
- The will must be published. This occurs when the testator advises the witnesses that they are witnessing a will.
- There must be two attesting witnesses. The witnesses do not need to sign the will in the presence of each other.
- In some States the execution ceremony of the will must be completed within 30 days.
The will execution ceremony is the time period during which all the legal requirements for preparing a will need to be completed.
A Holographic will is a will that is handwritten by a testator and signed but is not witnessed by others. Holographic wills are written in emergency situations. They are often written by sailors at sea or by soldiers. Some States do not recognize holographic wills.
In order for a Holographic will to be recognized, evidence must be presented that shows that the testator actually created the will, that the testator had the mental capacity to create the will at the time that the will was created. Holographic wills will also be deemed valid if evidence shows that the testator created the will with the intention to distribute property to others.
If you have not yet created a will and find yourself in an accident where death is imminent, you may consider preparing a Holographic will as a last resort.
A codicil is an amendment to a will. People may amend their will for various reasons. You may amend your will to add a beneficiary or to designate a specific person to receive a bequest. The codicil will be accepted as an amendment if it does not appear to be a revocation of the prior will. If the codicil appears to supersede or revoke the prior will then the first will may be invalidated. The same formalities used to prepare the prior will should also be used to prepare the codicil. That includes the two witnesses, the publications and signatures.
A successful will should be written in a way to provide for after born children. If your prior will did not include an after born child you may amend your will to include the child. Some people may recall the case of famous celebrity Anna Nicole Smith who failed to write an inclusive will and failed to prepare a codicil. Anna Nicole Smith died leaving all her property to her first child who predeceased her.
Important Items to Address in your Will
The important items that you should address in your will are as follows:
- You must declare that you have the capacity to dispose of your property.
- You should specify your demographic information. This is necessary because there may be someone else with the same name.
- You should name the executor and alternative executor. The executor is a very important person who will be charged with administering the estate. The executor ensures that all beneficiaries are contacted and that taxes are paid. Executor are compensated for their work. The executor does not have to be an attorney. However, attorneys are more experienced in this area.
- If young children are involved, then the will must address custody and guardianship .
- The will must address taxes and debts against the estate.
- The will must address real estate.
- The will must address assets, personal property and specific gifts to named individuals
- Address any final wishes.
A successfully written will tailors certain of the aforementioned items to the needs of the Testator.
Considerations Prior to Drafting A Will
Prior to drafting a will you should take a few days to think about the following:
- What are my assets? For example; Land, Vacation homes, Time shares, Bank Accounts, Art work, Jewelry, Cars, Stocks, Bonds, Antique furniture, Family pictures, Farm animals, Fur coats?
- Where are my assets located? For example; property addresses, items loaned to others, things in storage facilities, banks account numbers.
- What types of debts do I have? Lien holders on certain properties, taxes owed, business loans, bank loans, mortgages.
- Will my pets be properly cared for after I die?
- How do I want to dispose of specific assets? Do you want to leave assets to special people in your life who are not related to you? For example, a personal assistant, a housekeeper, a friend or neighbor.
- Who do I want to be the executor? Who do I trust to follow through? Who is reliable? Is an outsider more reliable than a family member?
- Who do I want to be the substitute executor? Will this person accept the challenge?
- Who do I want to benefit from my will? Do I want all my children and grandchildren to benefit?
- Remember that you can't usually disinherit your spouse. State laws usually provide a specific amount called an elective share that a spouse is entitled to under a will.
- Who do I want to disinherit? For example you have not seen your adopted son in 30 years, he has never called and he tried to kill you prior to disappearing.
- Do I want to leave anything to Charity? Any favorite causes supported over the years?
- I am still young, do I plan to have more children?
- Who do I want to be the guardians of my children who are under legal age? Who do I really trust to be guardians of my children?
- Do I want my children to have access to certain funds prior to becoming of age?
LAST WILL AND TESTAMENT
I, Jane Doe, residing at 148 Manning Avenue, West Orange, New Jersey 07052, County of Essex, being of sound mind and memory, do hereby make, publish and declare this to be my last Will and Testament, hereby revoking all Wills and Codicils and other Testamentary writings previously made by me.
I declare that at the date of this will I am 80 years old with three Adult daughters.
A. I hereby appoint Sarah Miller Executrix of this my Last Will and Testament. In the event that Sarah does not survive me or fails or cease to serve as Executrix, then I nominate and appoint Vicky Doe Executrix as her successor.
The executrix acting under this will shall have all the powers that are conferred under New Jersey State Law. I instruct that my executrix shall not be required to post a bond or a surety in the State of New Jersey or any other State. If a bond is so required, then the named executrix under my will shall not be responsible to meet the obligation of any surety.
I direct that all expenses related to my illness, support, death, funeral expenses and estate administration be paid from my residuary estate as soon after my death as possible. I also direct all mortgages or encumbered property that I own at death be passed subject to the mortgages and not paid by the residuary estate.
I direct that all inheritance, succession and other duties (together with interest and penalties thereon, ) or taxes that are levied or assessed by reason of my death upon any property that consists of my gross estate be paid from my residuary estate without any contribution by distributes under the will. This includes property over which I have powers of appointment and all property that pass by my will.
I give and bequeath all of the proceeds, if any, deriving from my lawsuit against Millburn Hospital, for an incident that occurred on January, 2012, to my Niece Sarah Miller. If Sarah Miller shall not survive me then to my children in equal shares. The share of any child who does not survive me should be given to her children equally. If any child of mine who does not survive me has no children then her share equally to my other children. If neither Sarah Miller, my children or grandchildren survive me then the proceeds under this article shall be given to the New Jersey Cancer Society.
I give and bequest my three Claude Monet paintings hanging above my fireplace or wherever located at death, to be given to my Sister Doreen Prince. If Doreen Prince does not survive me then the paintings shall go to the New Jersey Cancer Society.
All the rest, residue and remainder of my estate, of every nature and description both real property and mixed, where ever situated, and any property over which I may have a previously unexercised power of appointment, I bequeath to all my children in equal shares. If any child shall predecease me then to her children equally. If any child who predeceases me has no children then to my other children in equal shares. If none of my children and grandchildren survives me then all of said rest, residue and remainder of my estate as described in this Article shall go to my Niece Sarah Miller. If neither my children, grandchildren nor Sarah Miller shall survive me, then all of said rest, residue and remainder of my estate as herein described in this Article shall be given to the New Jersey Cancer Society.
IN WITNESS WHEREOF, I subscribe my name, this 9th day of February, Two Thousand and fourteen, at West Orange, New Jersey.
The foregoing will, consisting of this page and preceding typewritten pages, was signed, sealed, published and declared by the above-named Testatrix as her Last Will and Testament, in the presence of us, who in her presence and at her request and in her presence and the presence of each other have hereunto subscribed our names as witnesses, this 9th day of February Two Thousand and Fourteen.
What to Do after the Will is Written
Depending on the State that you live in you may take an extra step. You may take the will to a notary public and sign an affidavit acknowledging your signature in that notary’s presence. Your two witnesses should also sign the affidavit acknowledging their signatures in the presence of the notary and certifying that all formalities of will preparation had been complied with. While this step is unnecessary in most states, it is a requirement in some. This will prevent having to prove that you actually signed the will during probate or if the will is contested. Probate is the legal process for administration of the will and a determination as to whether the will is valid or invalid. During contest or challenge of a will, the two witnesses to your will are required to testify that they witnessed you signing the will. A notarized statement will prevent this extra step and allows the will to be considered “self proving.”
After completion of your will, you should file it away in a safe fireproof place. You should make several copies and give one to your executor or attorney. You may store a copy in a safety deposit box. A trusted person should know how to gain access to your safety deposit box.
Everyone should have a will. A will does not have to be complex or detailed as long as the legal requirements are met. A will gives you a final say at death as to how you want your assets to be distributed. Do not create a burden on others in having them decide how you want your property and other assets disposed of. Set some time aside and prepare your will as soon as possible.