What Are the Requirements for Making A
Will?
Anyone of legal age (18 years old in most states) and
sound mind can make a Will. If you have property that you wish to distribute at
the time of your death, you should have a Will.
When you make out your Will, you'll need to designate
beneficiaries and an executor. The beneficiaries are the people or organizations
who receive your property. The executor is the one you designate to see that
your wishes are carried out.
If you have minor children, you should also nominate a
guardian to provide for the physical welfare of your children.
Legal Age
In most states, a minor becomes an adult at the age of 18.
Once he or she reaches that legal age, certain rights and privileges are
granted. That holds true for most states when it comes to making a Will.
Forty-seven states currently require the Will maker to be at least 18 years of
age. South Dakota is the only state that requires the Will maker to be older
than 18. Louisiana sets the minimum age at 16, while in Georgia, you can make a
Will as early as 14 years of age.
A number of states make provisions for those younger than
18 years of age to write a Will if they are married, economically independent,
or a member of the armed forces.
Mental Competence
"Being of sound mind and body" is a phrase made famous by
movies and television versions of Will making. And it's true, mental competence
is an essential factor in making sure your Will is legally binding. Being
mentally competent means that you know you are executing a Will, and are
familiar with your property as well as your family and descendants. Witnesses
are required to sign the Will and one of their functions is to validate your
mental well-being.
If is it anticipated that dissatisfied heirs might contest
the Will based on mental incompetency, extra steps should be taken at the time
of the signing of the Will, such as a doctor's assessment.
Distribution of Property
The main purpose of a Will is to make provisions for the
distribution of your property after your death. In general, you can designate
anyone you wish to be your beneficiaries and you can distribute your assets in
any fashion, but there are a few exceptions. Many states have provisions that
provide the surviving spouse with the ability to elect to take a defined portion
of the estate regardless of the provisions in the Will.
As we have seen many times in literature and drama,
unusual or excessive provisions can be attached to an inheritance. For example,
someone includes a Will provision that the first child to bear a child gets the
largest share of the estate. While this makes for good storylines in fiction,
most probate courts in the real world frown on such provisions. A dissatisfied
beneficiary may decide to contest the Will in court.
Leaving Property to Spouses
Most of the time, spouses are the major beneficiary in a
Will. Even so, there are laws in all states that protect the surviving spouse
from being disinherited. Some allow the spouse to take an elective share of the
estate, usually one-half or one-third, regardless of the provisions in the Will.
One method to disinherit a spouse may be through the use of a premarital
agreement, but the courts are apt to closely scrutinize such agreements to make
sure that the agreement was signed in good faith and with full disclosure of
assets.
It's possible to put limitations on the property that you
leave to a spouse through the establishment of trusts for the benefit of your
spouse, that come into existence after you die. You should consider the
following factors in deciding what kind of trust is best for your circumstances:
� the possibility that your spouse's needs may increase in
the future
� the manner of living to which your spouse is accustomed
� the ability of your spouse to provide for his or her own
needs
� the ability of your spouse to manage the trust assets
� the possibility that your spouse may remarry and the
affect the marriage may have on your children or other beneficiaries.
Providing for Minor Children
Many times a spouse is given the entire estate with the
expectation that he or she will provide for minor children. That expectation is
not always sound however, especially when the surviving spouse is not the parent
of the children, or if the spouse is not available to care for the children at
the time of your death.
One of the most common practices under these circumstances
is the establishment in the Will of a minor children's trust. The trust provides
financial support for the children until they become adults, at which time the
remaining assets of the trust are distributed to them. It is important to
carefully select the trustee, who will manage the trust and make the
distributions to your children. The trustee will work closely with the person
you've named as guardian to raise your children. In many cases, the trustee and
the guardian are the same person.
Leaving Property to Adult Children
It's common for adult children to receive a significant
portion of their parent's property. On the other hand, in every state except
Louisiana, it is legally permissible to disinherit a child, regardless of his or
her needs or age. Louisiana law provides that no child under the age of 23 at
the time of the parent's death can be disinherited.
Leaving Property to Grandchildren
Grandparents often leave portions of their estates to
their grandchildren to help pay for special needs or educational expenses.
Grandparents may also leave property to grandchildren because their parents
already have sufficient assets.
Written Requirements
Most Wills are documented with the written word. These are
usually formatted with typewriters or word processors. If properly signed and
witnessed according to the requirements of the state where signed, these are
legally valid in all states. However, there are other types of Wills.
Some states recognize Holographic Wills. These are
handwritten, unwitnessed Wills, signed only by the Will maker. A few states
still recognize Oral Wills, under certain conditions. Others offer a standard
Will form, where you just fill in the blanks.
A relatively new type of Will is the Video Will, where the
Will maker usually reads his or her Will out loud before a video camera.
Videotaping a Will can help avoid a Will contest by showing that the Will maker
was competent and following proper signing formalities. Keep in mind that many
states will not recognize a video Wills as a substitute for a written Will; the
Will maker should do both.
Signing Requirements
In order to make your Will valid, you must sign the
document in the presence of at least two witnesses. They, in turn, must sign it
as well, in your presence and in the presence of each other. At the time of the
signing, most state require that you be mentally competent and at least 18 years
of age.
Witnesses
Witnesses are very important to the validity of a Will.
The signature of at least two witnesses is required in order to affirm that you
were mentally competent and under no duress at the time you executed the Will.
Each witness must understand that they are witnessing a the signing of a Will
and they must be competent to testify in court. Witnesses should sign in the
presence of each other.
In many states, a witness cannot be a beneficiary of the
estate. States have adopted these laws to prevent any conflict of interest from
those who may be in line for gifts, or who may benefit from your death. Some
states will allow for a beneficiary to act as a witness, but in doing so, that
witness may lose some or all of the property that he or she would have to
inherited.
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