How To Make a Last Will and Testament

Written By: Emil FleysherJanuary 13, 2023
How to make a last will and testament

You know that your last will and testament is an important document. But do you know how to draft one? If you are considering drafting a last will and testament on your own or are planning to get one drafted by a lawyer, this blog post is for you.

Know everything you need to learn about will writing and making it legally valid. We will take you on a step-by-step journey to make a will and answer your legal questions about drafting a will.

Understanding How Last Will and Testament Work

Understanding how last will and testament work

The last will and testament direct how you wish to distribute your assets, such as bank balances, property, or valued possessions, after death. You can also name who will receive your property and in what quantity, and authorize a guardianship arrangement for surviving dependents.

If you own a business or investments, your can also stipulate who receives them and when in your last will and testament. Additionally, you can direct assets to a charity of your choice or leave assets to a specific institution or group using a will.

A will is written while a person is still alive, and its instructions are only followed when the individual dies. The probate court frequently oversees the executor to ensure that the final wishes expressed in the will are carried out.

Ultimately, a will and testament is a legal document you can utilize to ensure your estate is settled as requested and serve as the cornerstone of an estate plan.

What Happens if You Die Without Making a Will?

A court-appointed administrator will divide your assets if you die without a valid will. These third-party administrators usually use a predetermined formula set by state law to fairly partition your assets.

The surviving spouse and any children of an intestate person receive their property first, according to the California probate code (varying degrees, depending on the situation). If no instructions are provided, and there are no surviving family members, the state may be able to seize your property.

Who Needs a Last Will and Testament, and Who Can Make One?

Who needs a last will and testaments, and who can make one

In general, if you are of legal age, usually around 18 years of age, you should be able to create a will. Additionally, you must be of "sound mind." Here's how the law identifies an individual with a sound mind:

  • Before you sign, you should know what a will is.
  • You know the individuals you have named in your will and how you relate to them.
  • You understand your assets' types and values, which informs how you wish to distribute them.

Be aware that if you're married, in the military, or have formal emancipation, there may be exceptions to the age requirement.

Gather These Essential Details Before Writing Your Will

Before writing your last will, you should gather some critical documents to ensure everything goes according to plan and that your final wishes are honored.

Your List of Assets and Debts

Your assets include any money you're leaving behind in your bank accounts, real and personal property, investments, retirement plans, life insurance policies, art, and other property.

You can specify how your estate should handle paying off debts using your last will and testament. Your assets will probably cover any probate fees and funeral expenses first before moving toward your unpaid bills.

Who Will Be Your Beneficiary?

When you are prepared to draft your last will, consider which of your loved ones you would like to inherit your real estate and other assets.

Although it might seem unnecessary to update your beneficiaries, remember that recent births, deaths, marriages, divorces, etc., may impact who you want to name in your will.

Find a Reliable Executor

The executor is the person in charge of managing your estate and the instructions in your will. Your executor should be capable of handling your estate and willing to assume the duty, two things you should confirm. Having an alternate executor in mind is a good idea if your initial choice cannot fulfill its obligations.

Find a Reliable Guardian for Your Minor Children

If you have minor children, your will is an excellent document to name a guardian if their other parent cannot care for them for any reason (including if both parents die simultaneously).

Consider giving an additional option if the person you choose is unsuitable when the time comes. For example, your chosen guardian has also passed away or can no longer care for your children).

It's also an excellent idea to talk to these individuals beforehand to ensure they're keen to become legal guardians to your kids if anything happens to you before they become adults.

A Step-by-Step Guide on Writing Last Will and Testament

A step by step guide on writing last will and testament

If you want to ensure your family has everything they need—instead of just everything left over after creditors are paid—you must draft a will. If you haven't done so, here's a step-by-step guide on writing one.

#1. Speak With a Licensed Estate Attorney

Before you decide to write your own last will, please be aware that it's complicated to draft a legal will without the guidance of a licensed estate attorney.

Wills should be made by adults of sound mind, not acting under coercion or undue influence. You should consider all points carefully when writing a will because once it is signed, it's legally valid and can't be revoked.

Fleysher Law is the best place to help write your will, living will, trust, and other estate planning documents. Our firm has many years of experience in this field, which allows us to provide you with quality legal service following your needs and wishes.

#2. Compile a List of Your Personal Property

After finding a suitable lawyer, you should start listing your assets and compiling evidence of ownership. Personal property can be both tangible and intangible.

Jewelry, furniture, automobiles, and other physical goods are examples of tangible personal property. Cash accounts, stocks, bonds, and other nonphysical assets are examples of intangible personal property.

#3. Name Your Beneficiaries

You can name any person (or more than one) as your beneficiary on your last will and testament form. Beneficiaries can include close friends and family, and even entities like charities are eligible to receive your assets.

Furthermore, if you want to leave money to your minor child, you should appoint a trustee to hold the funds until the youngster is an adult.

If a beneficiary dies before you, you can amend your will to name a different beneficiary. If not, a contingent or alternate beneficiary, who is your second choice, may receive your property. The state government would control the outcome if you didn't name a contingent beneficiary.

#4. Name a Guardian (If You Have Minor Children)

You can appoint guardians for any minor children when you draft a will. The individual (or people) you select must be able to handle each of the duties specified below:

  • Bringing them up till they are adults
  • Providing them with a secure place to live
  • Maintaining a healthy diet and lifestyle
  • Ensuring that they receive education

You may still have an extensive list of potential prospects if you include your parents, siblings, and other close family members. To help you narrow down your selections, examine the following questions:

  • Do your guardians hold the same values that your family does?
  • Could your children still participate in their favorite pastimes?
  • Would your child be able to attend the same school?
  • Do the guardians you've chosen have children of their own?

Even though there is a minimal possibility they may be needed, it is crucial that your guardians be happy with their role. Therefore, always discuss matters with them before putting them in your will.

#5. Identify Your Executor or Personal Representative

An executor is an entity responsible for overseeing the implementation of your last will and testament. This is the person you entrust to read your last wishes and ensure that instructions are carried out correctly. Anyone can be an executor, but make sure you can trust their judgment and integrity.

#6. Sign Your Last Will and Testament Before Two Witnesses

Make sure you properly finalize your will with the required signatures from your state. Many states require two witnesses plus a notary, but rules vary slightly by state, so make sure you understand the requirements of the state you're signing in.

#7. Get Your Will Notarized

If your state laws demand it, you should have your will notarized. Although most states do not need it, having a notarized self-proving affidavit might help the probate process go more smoothly.

What Are the Responsibilities of the Executor and Beneficiary?

What are the responsibilities of the executor and beneficiary

These two people must work together to protect the assets of a person who has passed away and to distribute them carefully.

Beneficiaries receive what has been provided to them and are not required to share the same responsibilities as an executor. Beneficiaries can also obtain the trust of the dead person. Trusts may provide advantages due to their many forms.

Executors play a more active role than beneficiaries. These individuals have additional duties to do to finish the estate administration procedure. They should be named in an individual's will to carry out the responsibilities of this function.

An executor may be required to pay off debts or taxes that the deceased individual left behind. Meetings with professionals, such as attorneys or accountants, may be part of this.

The executor is in charge of bringing the will to probate after the individual's death. They can do so at the Surrogate Court of the county where the deceased lived.

There is still work to be done once the will has been probated. The executor is responsible for collecting the assets specified in the will, which they will transfer to the appropriate beneficiaries to ensure everyone receives what they are entitled to.

If the executor fails to perform their obligations, they can be replaced. Beneficiaries might ask the court to investigate the situation and make a final decision. If the executor abuses their position, they may be referred for removal.

What Property is Not Covered by a Will?

What are the properties not covered by a will

Any form of property that is already subject to laws governing its distribution following your death should not be mentioned in your will. The following are the most typical types of such property:

  • Property held with a right of survivorship: Properties with a right of survivorship or held in joint tenancy, or tenancy by the entirety, will automatically transfer to the co-owner upon your death, and nothing in your will can alter this.
  • Property held in a living trust: Living trusts are made to expedite property transfer upon the grantor's death and avoid probate. Upon the grantor's death, the beneficiaries of a living trust immediately acquire any property held by the trust. A revocable trust's provisions can permanently be changed during your lifetime by revising the trust documents, but not through a will.
  • Life insurance or annuity proceeds: The named beneficiary of a life insurance or annuity policy receives the proceeds automatically.
  • Retirement plan, pension, IRA, and 401(k) earnings: As with life insurance proceeds, these are distributed directly to the stated beneficiary on the forms.
  • Pay-on-death bank accounts: Money in a pay-on-death account is automatically sent to the beneficiary named.
  • Transfer-on-death (TOD) property: Bonds, mutual funds, stocks, real estate, or automobiles can be held in beneficiary in this manner, and they pass to the specified beneficiary automatically.

When Should You Update Your Will?

When you should update your will

As you age, reviewing and updating your will is essential, especially if you own multiple assets or your family situation has changed since you wrote your last will.

If you have a will already, you may want to consider updating it in the following circumstances:

Giving Birth or Adopting a Child

You should ensure that your child is catered for and has a legal guardian appointed in your will whether you give birth to them naturally or adopt them.

After a Marriage or Divorce

Marital status is one of the clearest and most frequent justifications for changing a will. It's time to review and, most likely, amend your will if you've just been married or divorced. You should also know whether you reside in a common law or community property state.

After Buying or Selling a House

This point is essential if you sell or purchase a home after drafting your original will, as this is the most valuable asset most people will own over their lifetime. Updating your will to reflect the new circumstances surrounding this crucial financial asset gives your beneficiaries clarity and certainty if you become incapacitated or die unexpectedly.

After the Death of Your Named Beneficiary or Executor

If an individual mentioned in the will passed away, it's crucial to revise your will in these situations, whether this relates to a beneficiary or executor.

Drastic Economic Changes in Your Situation

There are several situations where your wealth may drop, such as if you experience stock market losses. You can alter your beneficiaries as a result, as well as the assets you leave to them.

Factors That Could Invalidate Your Will

Factors that could invalidate your will

Although you may think your estate is organized and free from problems, several factors can invalidate your will, such as the following:

Mental Incompetence

The mental competency of the testator, or the person who created the will, is one of the most frequent justifications for contesting a will. You must pass a minimum competency exam to make a legally binding will. This entails being aware of the following:

  • You own property
  • Who are your family members
  • Your connection to the beneficiaries you've selected
  • The meaning and contents of the will

Someone with dementia or other mental disabilities can still write a legitimate will. You should consult with an attorney to provide the necessary documents, which may include a doctor's report or even a video of yourself if you're concerned that someone may try to argue that you lack testamentary competence.

Multiple Versions of the Will

If you die with many wills, it may be challenging to determine which one is valid. To avoid misunderstanding, whether you alter your will with a codicil or create a new one, make sure to revoke the previous ones.

If you previously filed your will with an attorney or local county court, please provide them with the most recent form. Not all states enable you to register a will during your lifetime; registering a will is usually for safekeeping and storage and has no bearing on will's validity.

Invalid Witnesses

Most states demand that two or three adults witness your will. The majority of states require that these individuals be not only present when you sign the will but also be able to verify that you were of sound mind at the time.

It is better to refrain from having any beneficiaries or Will's executor serve as witnesses. The witnesses must sign the will to attest to their presence. The document might then require notarization. To ensure you follow all criteria when you execute your will, check your state's laws regarding witnesses and wills.

Other Estate Planning Tools You Should Consider Along With a Last Will and Testament

Here is a possible estate planning checklist of items every estate plan should include along with a last will and testament:

  • A living will: A living trust is similar to a will in that it specifies who should get your assets after death. On the other hand, your assets are placed in trust during your lifetime. Your assets will be transferred without the need for probate if you die. You can also choose a guardian for your trust.
  • Health directives: An advance directive empowers someone to make decisions for your health if you're incapable.
  • A durable power of attorney (POA): This agreement gives someone else the authority to make monetary decisions on your behalf if you cannot do so yourself.
  • Beneficiary designations: Choosing the appropriate beneficiary for each account is essential if you have insurance policies, savings accounts, financial assets, or retirement accounts.

Protect Your Family's Future Today

Protect your family's future today

Wishing to see your family protected after you're gone is natural. Too often, individuals fail to plan effectively for their future and their family's complete protection. This can mean problems for your family later on.

Don't wait any longer – contact Fleysher Law today. Our law firm has been helping families like yours through some of the most challenging times for many years.

Call us today at 888-886-0020 or complete this form to schedule a free consultation.

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