What is a Will and do you need to have one?

The Will, also called the last will and testament, is a legal document that helps you distribute your property to certain people or organizations, and to protect your minor family members. By making a Will, you can designate a personal guardian for your minor children, distribute your property, clarify your wishes for your funeral, burial, or cremation, and designate an executor that will make sure that your final wishes and desires are being followed.

Every state has its own intestacy succession rules. If you die without a will, your assets will be distributed according to the state law. The state laws usually provide a list and a ratio regarding who gets how much from your estate. In most cases, the list will start with your spouse, and then go on with your children/issue. Making a will is the only way to divert from this process and freely decide on the distribution of your estate.

However, a will cannot help you with everything you may need to consider while distributing your estate. The first thing a will cannot do is leaving someone a property which you hold in joint tenancy with someone else, or in tenancy by the entirety, or community property with right of survivorship. Another example would be your life insurance policy. If you have already named a beneficiary for your life insurance policy, you cannot designate a different beneficiary with a will. If you have a pension plan from your employer, IRA, or 401(k) plan, and you have designated a beneficiary for them, you will not be able to change this with a Will. If you hold property in transfer-on-death form, or money in a payable-on-death bank account, you cannot name a beneficiary for those in your will. You cannot avoid estate taxes with a will, but you can maybe decrease or postpone them with a trust. If you would like to leave property to a minor, or a beneficiary with special needs, it is best to do so with a trust rather than a will. You should also keep in mind that, even after making a will, your estate might spend several months to a year in probate before it is distributed to your beneficiaries.

After understanding the basics and the purpose of a will, it is necessary to know the legal requirements. Even though there are some differences in every state for making a will, there are four common requirements. First of all, you must be fully aware of the consequences of your action, that you are making a decision on your estate, and you must be doing so by your own free will. Second, you must name some beneficiaries for all or part of your estate. The beneficiary can be person, as well as an institution or an organization. You do not have to make a decision on all of your estate. You can separate some of it to be distributed according to the state laws and designate beneficiaries for only a part of your estate with a will. Third, you must sign your will. Lastly, you must have two witnesses to your signing of your will. There are certain requirements and suggestions on signature, formalities, and who can be your witnesses. Some states may have additional requirements, like registering your will with the probate court or having it notarized. You should consult an experienced attorney to make sure your will is fully effective and leaves no room for confusion.

The first step of making a will is to assess your needs, make a list of all your properties and your beneficiaries. Based on your needs, specific situation, or the size of your estate, your attorney may suggest you to draft a trust. If you decide to work with an attorney, he/she will provide you with relevant forms and the whole process will be much easier. It is important to decide on an executor, whom you trust, to make sure after you that the terms of your will are being fully executed. The executor does not have to be one your beneficiaries.

Another thing you can do with a will is to create some conditions for the distribution of your property. For instance, you can decide to leave one of your properties to your child “if and when he/she goes to college”. You have to make sure that your condition is legal and attainable.

What happens if you change your mind after making your will? You can always revoke your will and create a new one. To revoke your will, you can physically destroy it or make a new one saying that you are revoking the old one. In Maryland, if you marry and have/adopt a child after signing your will, the will is automatically revoked. If you divorce after signing your will, all the provisions in which you had named your spouse as the beneficiary will be revoked. It is most likely that you will need to make a new will in this case. Over time, our opinion and life circumstances change. If you change your state of residency you may need to make sure your will is compliant with your new state of residence. We make new friends, have new family members, and unfortunately lose some loved ones. That is why it is very common for people to change their will which they had signed a long time ago. You may want to consider consulting an attorney to see if your will is still valid and if you will need to make a new one.

This article is only a very short summary of the process of making a will. It is for informative purposes only and by no means it constitutes legal advice. It is highly suggested that you seek legal advice from an experienced attorney during this process and make sure your estate will be distributed according to your true will. We have been helping our clients with their estate planning needs for over twenty years. If you have any questions on this process, or would like to seek our help, we would be glad to help you, too. Please contact us for an appointment and further information.