Archive for May 21st, 2009:
What Is A Will And Do I Need One?
Many people wonder if their loved ones will be taken care of after they die. It is not necessarily a pleasant thing to think about your own death. However, for planning purposes it is essential to think about those you leave behind. One of the ways to ensure that your wishes are fulfilled after you die is to have a will (aka, last will and testament).
WHAT IS A WILL?
Simply put a will is a legal instrument that sets forth your final wishes with respect to your property, the guardianship of your minor children (and their property), and the management of your estate. You can think of it as an instruction manual on what to do (and possibly not do) after you die.
Some other definitions you might need to be familiar with:
Estate: The total of all your assets, property entitlements and liabilities.
Executor: The individual appointed in a will to oversee the winding up of the decedent’s affairs (also known as a Personal Representative).
Intestacy: A set of rules designed to distribute a decedent’s property in the event that they have no will.
Living Will: A legal instrument that details your wishes with respect to the type of medical care you would or would not like to receive after certain life functions have ceased.
Testator: The person making the will.
Probate: A court supervised procedure for distributing your property and verifying the validity of your will.
There are several different types of wills including:
Holographic Will: A will written in the handwriting of the testator without any witnesses. The general rule is that the will must be completely written in the testator’s handwriting, dated, and signed, plus there must be a statement that the testator intends this writing to be his or her will. These are only valid in 28 states. North Carolina is one the 28 states that will recognize a holographic will but there are limited circumstances in which this can take place.
Oral Will: A will that is made verbally to witnesses. This is also known as a nuncupative will. Generally most states do not recognize oral wills. In North Carolina an oral will may be valid in very limited circumstances but it can never be used to modify a validly executed written will.
Self-Proved Wills: This is a standard written will that has been signed and witnesses by the request number of witnesses and includes a self-proving affidavit that has also been signed under oath before a notary by the Testator and the witnesses. This type of will makes the probate process easier because the will can be admitted to probate court without the testimony of the witnesses.
A valid will must be executed according to strict and technical rules developed by each state. In North Carolina for a will to be valid it must be in writing and signed by the Testator in the presence of two witnesses who also sign the will in the Testator’s presence. Additionally, the Testator must be at least eighteen years old and the will must be executed with “testamentary intent.” These requirements are highly technical and should not be attempted without consulting with an attorney.
A simple will should contain the following important parts:
- Testator’s name and place of residence
- Testamentary Intent
- Personal information about your spouse, children and grandchildren
- Residue Beneficiary with an alternate beneficiary
- Guardian for minor children and an alternate guardian
- Executor or Personal Representative and an alternate Executor or Personal Representative
- Testator’s signature
- Witnesses’ signature
It is important to remember that a will is a legal document. The legal effect given to a will may depend upon adherence to very strict and technical rules. Always consult with an attorney before executing a will.
DO I NEED A WILL?
The answer to this question depends upon what you want to happen to your property and loved ones after you pass away. The bulk of your property can be distributed through a will. However, not all of your property is covered by a will. For instances, insurance benefits, retirement accounts and property owned as joint tenants with rights of survivorship already have designated beneficiary. Your cannot control the distribution of these assets with a will. It is possible to set up your estate in such a way that all of your property will be passed on to someone without using a will. But, remember that a will covers more than just property.
You need a will for designating who will be the guardian over your minor children and who will manage the affairs of your estate. You may also need a will if you want to leave property to a charitable organization. It is true that there are a variety of methods for planning your estate and a will should be a part of that plan. For most people, a will is the starting point for estate planning.
