I was having dinner with my friend last night and she asked me so many questions about a Will. I want to clear up a lot of the myths and confusion around Wills. Many of us don’t (over 60% of Americans) have Wills! It’s confusing!
A Will’s legal name is Last Will and Testament, although, most people simply refer to it as a Will.
Do I need a Will? Do I need a lawyer to write it? Do I need to get it “sealed” and sent in to the Court? Or, government agency? Do I need an original?
- What is a Last Will and Testament?
Many of us refer to this all important document as “The Will” or “My Will”.
A Last Will and Testament (Your Will) dictates how your assets (property in the form of real estate, cash, financial accounts and possessions) are divided, or, to put it bluntly, processed after your death. This is how your spouse, children and inheritors will receive the fruits of your hard labor and wealth or possessions you accumulated during your lifetime.
Your Will has no impact on anything while you are alive. It only becomes “active” after your passing.
Some trivia: Wills were first put in place by the Romans, Greeks and people who lived a very long time ago! Back then, you could write Your Will by hand and you didn’t need any witnesses. And, those many years ago, there were no typewriters, computers, scanners or cameras! So, what else could you do other than write out your Will long-hand?
Handwritten Wills are still valid in several US States. Handwritten Wills are also called a Holographic Will – which is a legal document. The idea is that your handwriting is genuine and cannot be copied.
- Who can write a Will?
Anyone of “Sound mind and body” and of legal age (usually 18).
That means you can walk a straight line and talk at the same time! And, whoever is watching and listening can make sense of what you said!
So, don’t write a Will while you are drunk or high on something!
Seriously, what it means is that, if you have a mental illness, you have memory loss, dementia, Alzheimer’s or anything that might cause lapses in your thinking, your desires that you put in the Will may be contested after your passing. Or, if you are in a coma, unconscious or unable to function, it’s too late!
For example, let’s say you have dementia. In your Will, you gave your house to your youngest son. Your other children can go to Court and say that you “were not of sound mind” when you wrote this Will. In such a case, the Judge will decide the best option for your family.
Recommendation: Get your Will done while you are of sound mind and body. If are reading this, today would be a good time!
- Do I need a lawyer to make a Will?
No. You can write your own. There are many templates online that you can use. You can customize these to reflect your desires.
Unfortunately, most people’s experience is that lawyers complicate documents and use confusing terms. They are really well meaning and nice people – mostly!
The result is that most people end up without a Will, mostly because they don’t understand the complicated words and what they are signing!
- How do I make a Will?
Take stock of what you have. Make a list of what you want to give and to whom.
Then spell it out in the Will. Use your full name and address and name everyone receiving something using their full name. Also, date your Will.
To my three children (John Alexander, Jane Alexander, Clark Alexander) to split equally:
- i) The proceeds of the sale of my house
- ii) The proceeds of the sale of my Wine collection
To my son John Alexander, I leave:
- i) Item 1 (The Civil War chest that he always liked)
- ii) Item 2
To my daughter Jane Alexander, I leave:
- i) Item 1
- ii) Item 2
Important: Just to make things a little complicated, your retirement plans, life insurance plans, annuities and some financial accounts require you to designate beneficiaries. Make sure your beneficiary designations are current and up-to-date (for example, if you got married, divorced or had a child, etc).
- What is an Executor? Who should I name as my Executor?
An Executor is the person who will carry out your wishes as you laid them out in Your Will. Ideally, someone of:
- Sound mind and body
- Someone you trust
- Someone who can make decisions in case you forgot something in Your Will
- Someone of legal age (18 and over)
- Who are Witnesses and Notaries? Why do I need them?
Since Your Will is a legal document that distributes your property after your passing, the State needs to know that YOU are the one who actually created it! Therefore, most States require two witnesses and many states require a notary. These people are simply certifying that YOU signed your Will. That your signature was not faked!
Notaries are not officials of the Court. Anyone can become a notary. They pass an exam and are licensed by the State to be an “Official Witness” or Notary. They have a stamp issued by the State and they have to use their stamp with their license number.
Important: Witnesses cannot be someone who inherits anything from your Will. Witnesses need to be of legal age (18 and over). They don’t need to read what is in Your Will. They are simply witnessing the fact that YOU signed the Will yourself (someone didn’t fake your signature) and were not forced to sign it under difficult circumstances.
i) Most states don’t accept a holographic (handwritten) Will. It’s best if you type one up or use a template. However, it’s better to have a Handwritten Will than No Will.
ii) Line up two witnesses. Witnesses must be people who will not inherit anything from your Will. I often recommend work colleagues or neighbors. Or, distant relatives – but, maybe you are not on speaking terms?
iii) Have two witnesses watch you sign and date Your Will
iv) Sign and date your Will (except if you are notarizing it – then don’t sign it YET). Notaries need to witness YOU signing your Will.
v) Have the witnesses sign Your Will. They don’t need to read what is in it. They are simply witnessing the fact that YOU signed the Will yourself (it’s not a fake signature) and were not forced to sign it under difficult circumstances.
vi) Many states require that your Will be notarized.
Notaries can be found in your town’s Town Hall, a bank, your legal department at work, perhaps the Chamber of Commerce. A notary will look at your government issued ID such as a Driver’s License, Passport, etc. They are simply certifying that YOU are the person who you say you are.
7. Good News! I have a Will. Do I have to stick it in an envelope and get a wax seal on it?
No. Gone are those days!
And, you don’t have to stand in line at someone unknown government building to “file” Your Will.
Important: Make sure your Executor knows where your Will is. Whether it’s in a Safe Deposit Box or under your mattress or some other secret hiding place
8. Do I need an original?
Ideally, yes. The original of Your Last Will and Testament will save the Executor a bunch of headaches and a lot of time. Therefore, make sure your Executor can get their hands on the Original.
If the Original cannot be found, it is not the end of the World! The Executor can apply to the Court with a copy. The Executor may have to jump through some hoops to prove the validity of your Will to the Court.
Important: Make sure your Executor knows where the original Will is and can get their hands on it. Also, make sure the Executor and preferably someone else has a copy. If there are multiple copies with multiple people, it is easier for the Court to accept this version of your Will.
9. What if I have young children?
You can name a Guardian or Guardians in Your Will. Make sure you’ve discussed this appointment with them and make sure that they are willing and able to take care of your children.
Important: Make sure your Guardians know what you want and are willing to take care of your children
10. How do I learn about the laws in my State?
Believe it or not, the Courts are customer service oriented! I know its intimidating walking into a Court! Your State has a Probate Court that oversees estates and inheritances.
Below is from Connecticut’s Probate Court’s website. Call them or go there and speak to a Court staff member. They won’t give you opinions about what you should do in your particular case, but, they can help with forms, procedures and so on.
11. What if I want to change my Will?
No problem. Go through the same process. Write out your new Will, get witnesses and/or notary, sign Your Will in their presence and let the Executor know that you have a new Will and where you put it. You might want to indicate that you are updating your Will as of (include date) and the previous one dated (include date) is no longer valid.
12. My stuff is complicated and I might/want/need a lawyer
Here are some instances where you might want a lawyer and some professional help:
- You have minor children and you want to set up trusts for them
- You have a lot of money and don’t want to give it to your adult children or anyone else in one lump sum (you will want to set up trusts in this case)
- You have property outside the United States
- You have property in multiple States
- You are responsible for a “special needs” person
- You are married to a non-US citizen
- You have children from several marriages
- You have children and step-children from several marriages
- You have investment property that is generating income and you want to continue to generate income
- You want to give away lots of money to charity (after your passing)
You get the idea…
Or, you just don’t want to go through figuring it out yourself and rather hire a lawyer to do it for you. I just want it done! That’s fine too.