The Definition of a Will

A will, sometimes called a “Last Will and Testament”, is a document that contains directions for the distribution of your estate at the time of your death. Wills can range from very simple to extremely complicated depending on the extent to which you want to direct the distribution of your property at the time of your death. A will can also become complicated when accomplishing a variety of goals, such as planning for minor children or achieving tax objectives.

Anyone with minor children, property they care about, or specific health care wishes should have some type of will. Wills are the only way to be certain that your wishes are carried out upon your incapacitation or death.

A will does not govern the transfer of certain types of assets, called nonprobate property, which by operation of law or contract pass to someone else on your death. Some examples of these are life insurance, joint property, retirement accounts, and employee death benefits.

Living Wills

A living will, also called a "medical directive" or "medical declaration”, is a document which directs how you would like your doctors to carry out your health care in the event that you suffer permanent incapacity. A living will is not the same as a will; it does not dictate what should happen to your property in the event of your death. If you think you would like to create a living will for yourself, you will most likely also want a will that can carry out your property wishes as well.

Living wills are often associated with elder care since they deal with the incapacitated. It is recommended that a living will should allow for all types of situation, so that your wishes are spelled out clearly in the event of any emergency.

In addition to a living will, you should also name a Health Care Proxy or Power of Attorney who will make decisions in your best interest in the event that you cannot.

Power of attorney is a legal document appointing someone, or a group of people, to speak for the person in the event that he cannot make decisions for himself. A power of attorney can either be general (in which the appointed person can make all decisions for the unable individual) or limited (in which the appointed person can only make specific decisions).

The three types of power of attorney are:

• Durable power of attorney lasts the entire period of a person’s incompetence.
• Standby power of attorney begins only where someone is incapable of managing his own affairs.
• Temporary power of attorney is employed when an emergency comes about in which a person cannot make decisions for himself.

How to Execute a Will

The best way to start constructing a will is to find a wills attorney. In the event of your death, you will not be there to explain what you meant in your will, and instead of leaving it up to a court to decide what should happen to your property, it is best to hire a wills attorney to be certain that everything follows your wishes. After you and your attorney draft your will, the document must be signed in the presence of witnesses.

* If you believe you do not need a lawyer, you need to make sure your will is still a legal document. In order to do so, your will must be typewritten, state that it is your will, have the date and your signature, and have the signature of two (in some states three) witnesses who are not included in other parts of the will.

When thinking about what you want to include in your will, there is certain information that must be present. Do not forget:

• Your name
• Your spouse’s name and date of marriage (if any)
• Names of all your children, as well as how foster and stepchildren are to be treated
• A Guardian for minor children
• A revocation of all prior wills
• Any special gifts
• Distribution of your estate (do not forget any debts, taxes, or expenses that may subtract from this)
• Names of Personal Representatives (Executors) and alternatives
• Personal Representative’s powers
• A waiver of the surety bond requirement

A codicil is any amendment to a will and must also be executed with the same formalities as the original will.

What Happens in the Absence of a Will

If a person dies without a will, his estate is intestate. If this happens, the entire estate will pass to heirs according to state inheritance laws. Most state statutes regarding intestate inheritance are designed to resemble what the average person would want their will to look like. Even if a person has specified to others exactly what they wanted upon their death, if no will exists, the court will decide where everything goes with no exceptions.

Most states’ laws closely resemble the 1990 Uniform Probate Code. While some states differ greatly, the majority of intestate states in the U.S. are directed according to the Probate Code. The Code gives priority to close relatives instead of distant ones. These include the spouse, descendents, parents, descendents of parents (siblings, nieces, and nephews), grandparents, and descendents of grandparents (aunts, uncles, and cousins). Under the Code, adopted descendents are treated the same as biological descendents. If none of the listed people qualify to accept the estate, then the entire estate goes to the state.

The Code breaks up the estate for close relatives as follows:

• The surviving spouse receives the entire, or a substantial part of the, estate (after taxes and expenses). In some cases, the estate is broken up differently, for example; if the owner of the estate has surviving descendents while the surviving spouse does not, the spouse receives the first $100,000 while the descendents receive the rest.
• The parents receive the estate if the owner is not survived by a spouse or descendents.
• Other relatives (owner’s parent’s descendents) receive the estate in case there is no spouse, descendents, or parents. If there are no descendents of the owner’s parents, the estate is divided between owner’s grandparent’s descendents, etc.

How to Proceed

Properly creating and executing a valid will is a difficult proposition without the assistance of an attorney. Due to the complexities of will execution and the problems with clarifying an individual’s last wishes, a wills attorney is recommended to create your will.