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Why you should write a will

After you are deceased, your money, possessions and property make up your estate. Your will instructs what should happen to these items in the event of your death. However, if you do not leave behind a will, the law dictates how your estate will be passed on, which may not be in line with your wishes.

Three main reasons you should make a will:

1. It makes things far easier for your friends or family to deal with the administrative process when you die. Without a will, this process can be time consuming and stressful.

2. If you don’t have one, your possessions will be shared among your loved ones in a standard way defined by the state laws, which is not necessarily what you might want.

3. It’s especially important to write a will if you have family members who depend on you financially, or if you want to leave anything to people outside of your immediate family.

What your will states:

The document will tell people two main things:

  1. Who should have your estate when you pass on.

  2. Who should be in charge of organizing your estate and following your instructions – this person is called your ‘executor’. You can name more than one person if you like.

Your will can also be used to tell people about any of your other wishes, such as instructions for your burial or cremation.

The executor will do their best to ensure your will is followed, as long as your wishes don’t involve breaking the law. Note than it may not always be possible for the executor to carry out your instructions, but if you do have a will there’s a better chance of things happening the way you want them to.

Making sure your will document is legally valid:

It doesn’t have to be written on special paper or use excessive legal language. Your will is valid as long it adheres to the following conditions:

  • It states how your estate should be divided when you die.

  • It was written while you were in the right state of mind to make your own decisions, and you weren’t pressured about who to leave your belongings to.

  • It is signed and dated by you in the presence of two, (or in some states, three), independent, adult witnesses, and then signed by these witnesses in your presence. Note that these witnesses can’t be people who are going to inherit any of your estate (or their wife/husband/civil partner).

What happens if you don’t have a Will when you die?

In the event that you die without leaving a Last Will & Testament, the intestacy laws of the state where you reside will determine how your property  is distributed upon your death. This includes any bank accounts, securities, real estate, and other assets you own at the time of death. However, if the real estate is located in another state to where you live, it will fall under the laws of the states it is located in. 

Dying without a Will is called intestacy or dying intestate.

In the majority if cases, the inheritance is distributed in split shares to your "heirs," which can include your surviving spouse, parents, siblings, aunts and uncles, nieces, nephews, and distant relatives. Generally, when no relatives can be found, the entire estate goes to the state.

However, confusion can arise in relationships such as domestic partners. In some states, if you are not married and do not have a will, your estate will automatically pass on to living relatives.

What your Will states

The document will tell people two main things:

  1. Who should have your estate when you pass on.

  2. Who should be in charge of organizing your estate and following your instructions – this person is called your ‘executor’. You can name more than one person if you like.

Your will can also be used to tell people about any of your other wishes, such as instructions for your burial or cremation.

The executor will do their best to ensure your will is followed, as long as your wishes don’t involve breaking the law. Note than it may not always be possible for the executor to carry out your instructions, but if you do have a will there’s a better chance of things happening the way you want them to.

What should I include in my Will?

  • Name an executor and an alternative in case the first is unable or unwilling to do so.

  • Name beneficiaries to get specific property and/or assets and also include alternatives (like their spouses or dependents) in case these beneficiaries cannot accept them.

  • Name someone to take all remaining property if there is any.

  • Give directions on division of personal assets as well as business assets.

  • Specify how taxes, debts and expenses should be paid and if there any policies intended to cover these.

  • Indicate if there are any special instructions for maintaining real estate.

  • Provide instructions on care for pets, if any.

How long will my Will remain valid?

Your Will remains valid forever. There are exceptions to this rule. For example, you may revoke your Will on purpose, or you divorce your spouse after signing your Will and there is a subsequent property settlement.

If you were married at the time of creating your will and got divorced at a later stage, in most states, either your entire will is revoked or certain aspects of it will be. For example, if you left property to your previous partner that was revoked by the divorce, this will then be revoked in your will too.

If you destroy the original will or write a new one and revoke the old one, this will also invalidate it.

Note that a will that has been revoked by a person who is of legal competency cannot be revived and you’ll have to make a new one. For example, if you have written Will 1 but change your mind and write a new Will 2 saying you revoke Will 1, Will 1 is then totally revoked. If you decide to change your mind again and destroy Will 2, this won’t make Will 1 valid again. You will have to make another.

Are there state differences when writing a Will?

It is vitally important that your will and testament forms are drawn up specifically for the state in which they are executed. This is because laws governing last will and testaments vary according to state. It is you who dictates who you wish to benefit from your will, however, the legal document must be compliant with the laws of the state in which it is executed for it to be valid.

Moreover, if you move to another state, you should update your will to make sure it is compliant with the laws of the new state. Individual states may differ on how they govern:

  • Who can make a will.

  • The requirements of witnesses, and who can be counted as a witness.

  • How wills are executed.

  • How and when a will can be revoked.

  • How events such as divorce can affect wills.

  • Situations when a will may be voided.

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