The subject of a will can be rather unpleasant to think about. It’s an acknowledgement of one’s own mortality, which is something that most of us would rather avoid. However unpleasant, the necessity of a will is an inevitability, and it is far better to be prepared for how you would like your estate to be settled once you are gone.

Many individuals want to know whether they need a lawyer to create a will. The short answer: You do not need a lawyer to create a will, as long as you follow the rules of executing a valid will in your state. An attorney who drafts a will for you may charge high rates to do so and want to represent you during the probate process.

Before we get into the litigious nitty-gritty, let’s strip the subject of a will down to the basics.

 

What is a will?

 

A will is a legal document in which the author, or testator, declares how they would like their estate to be managed after their death. The testator should appoint an executor, which is a person who will manage your estate and ensure that your wishes are carried out after your death. A will can be as broad or as detailed as you would like. It can delineate small items, like who will receive individual pieces of property, and detail wishes for more significant concerns, like who is to become legal guardian of any living minor children or dependents. A person receiving a portion of your estate after your death is called a beneficiary. A will should be kept in a safe, yet easily accessible location. Additionally, you may want to have a trusted person keep signed copies of your will in case the original is damaged.

Your executor can be a single person, such as an adult child, or joint executors. If your estate is very complicated, it may be best to name your attorney as a joint executory, but this is usually not necessary. Bear in mind that you should also include items which will assist the executor in carrying out their function to the best of their ability, including passwords and account numbers. It is important to include permission for your executor to pay any remaining debts and any other financial issues not specifically referenced in your will. If desired, specific instructions for your burial should also be present in your will.

Your will itself can be extremely detailed, or you may leave a separate document, entitled a Letter of Instruction, which outlines your wishes for who will be beneficiaries to your personal property. The Letter of Instruction can be included with your will, but is not legally binding in many states. Make sure you check to see if it is considered a legal document in your state.

All wills must meet certain standards, dictated by each state, to ensure validity and legality. While these requirements vary from state to state, all states require that a will must have a disinterested witness. A witness to a will must not be a beneficiary of the estate, as this is a conflict of interest. Since the witness has no stake in how the estate is parceled out, they are referred to as a ‘disinterested witness’. One useful step to take is to have any disinterested witness sign a self-proving affidavit in the presence of a notary. This usually means that two witnesses, under penalty of perjury, sign that they witnessed the author sign their will, and that the author stated to the witnesses that the document they are witnessing is the author’s will. This affidavit ensures the authenticity of the will, easing the process with which a will’s legal validity is checked before being put into effect.

 

Where can I find all the information I need to include in my will?

 

Unless your estate is considerably complex, using a lawyer may be a costly and unnecessary expense in the creation of your will. A lawyer, however, can be useful in probate, a subject we will touch upon later in the article. Although information regarding wills can appear confusing, there are many resources widely available for public consumption. A simple internet search yields numerous results for DIY kits and checklists, which will guide you step-by-step through everything you need to know about creating a will. Writing a will does not have to be a complex process; simply ensure that your will meets the state’s requirements for legal validity, so your wishes for your estate after your death will be upheld.

 

What types of property are not included in a will?

 

Insurance policies and retirement accounts are typically not included in a will. Most insurance agencies require a beneficiary to be named in the process of taking out a policy. The beneficiary named on, say, your life insurance policy, would be the recipient of the funds accrued and related to your policy, separate from anything left to them in your will. It is advisable to check the beneficiaries of such policies and make any necessary changes, as your wishes may be different than they were at the creation of the policies.

 

What happens if I don’t create a will?

 

A person who passes away before creating a legally valid will is said to pass intestate. Essentially, one who passes intestate will have their estate settled according to state laws. Each state has a specific set of laws which dictate how the estate of a decedent who dies intestate will be divided.

A judge appoints an administrator to serve as a kind of executor of the property. The administrator should be a disinterested party; that is, someone who is unrelated to decedent or potential beneficiaries. The administrator will be legally bound by any state laws of probate.

 

What is probate?

 

Probate is both the certificate issued by a court that states that a will and the executor(s) named in the will are legally valid, and the process by which the deceased’s estate is distributed. It is the job of the court to ensure that any remaining debts a deceased person may have are paid out of their estate, before any additional inheritance is distributed to beneficiaries. Even if a person dies intestate, probate is still used to pay that person’s remaining debts.

The probate process has nine steps:

(1) authentication of the last will and testament, in which a judge determines if a will is legally valid;
(2) appointment of the executor, in which a judge will appoint an executor, usually named in the will, and give this person letters testamentary, or the appropriate documentation that allows the executor to act on behalf of the deceased’s estate;
(3) posting bond, which acts as a kind of insurance policy to reimburse the estate should an executor make an error;
(4) locating the decedent’s assets, in which the executor locates and protects the decedent’s assets and property, and protects it, until it is distributed to its beneficiaries; (5) determining date of death values, in which the executor or the court finds has the decedent’s estate appraised;
(6) identifying and notifying creditors, in which the executor notifies creditors of the deceased’s passing, usually done by posting a death notice in a local newspaper; (7) paying the decedent’s debts, in which the executor pays the deceased’s debts and final bills from their estate funds;
(8) preparing and filing tax refunds of the decedent, which is, again, performed by the executor; and finally,
(9) distribution of the remaining estate to beneficiaries.

 

Do I need a lawyer for probate?

 

The process of probate can be overwhelming, so hiring an attorney to help you navigate its various steps is probably a smart move. Probate requires meticulous attention to detail, as well as copious amounts of paperwork, so having an experienced attorney is invaluable. Additionally, probate does not always go smoothly. If a family member wishes to contest a will, a lawyer can assist you avoiding costly and emotional court battles.

There are two types of probate lawyers: transactional probate lawyers and probate litigators. Transactional probate lawyers help the executors handle the responsibilities of the decedent’s estate. Probate litigators represent individuals who are contesting a will. Finding a probate firm that is experienced in litigation and transaction, as well as other areas of law is essential for probate to run smoothly. For example, probate lawyers who are experienced in real estate law can recognize whether an action taking place will affect the decedent’s estate holdings.

It’s important to find a lawyer who is the right fit for your needs. Make sure your attorney communicates clearly and is willing to provide explanations any time you ask for clarification. Your attorney should also respect your efforts at self-education, and aid you in having a complete understanding of the probate process.

For any questions or advice regarding your specific needs, please contact our knowledgeable team of financial advisors. We would be happy to help you navigate this process.

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