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What is a Last Will and Testament?

A Last Will and Testament, also known as a Will, is a legal document that declares your intention as to what should occur to your estate after you pass away. A Will is one of the most common means of distributing property after a person passes away. An estate is your net worth minus any liabilities, such as debts and expenses.

A Will is an important part of a complete estate plan. A Will allows you to communicate your wishes and instructions upon your passing in a clear and precise manner, it also allows you to appoint a guardian for minor children.

What happens if I pass away without a Will?

If you should pass away without a Will then your assets will be distributed to your heirs according to your state's specific laws, which will not necessarily create the results that you would have preferred. Passing without a Will is known as dying intestate. If you should die intestate, your heirs may be forced to spend additional money, time and effort in order to settle your affairs after your passing.

Do I really need a Will?

There are many reasons why it is important for you to have a Will. It is recommended to create a Will if:

  • You want to be clear about who gets certain assets, for example you can identify specific people to leave certain gifts to;

  • You want to ensure that your assets are kept out of the hands of certain people or want to prevent conflict among family members;

  • you have children and want to appoint a guardian to care for you children upon your passing; or

  • you have pets that you want to appoint a guardian to care for after you pass.

What information does a Will generally contain?

A Will generally includes the following information:

  • The Testator's information- the Testator is the person creating the will and whose assets will be distributed in accordance with the Will after passing;

  • The appointment of the Executor, who is the person that will carry out your wishes in accordance with your will;

  • The naming of your Beneficiaries, who are the people who will inherit the assets in accordance with your will. A beneficiary can be an individual, an organization or an institution;

  • Your instructions and wishes to be carried out regarding the distribution of your assets; and

  • The naming of any guardians for children and for pets.

What assets can be passed to beneficiaries under my Will?

Any asset that you want such as real estate held solely in your name, personal property, jewelry, cars, cash, bank accounts can be passed along in a Will. The Will would be the place to identify which beneficiary should receive what item. However, it is important to note that certain assets will allow you to name a beneficiary and do not need to be included in the Will if you have named a named beneficiary. For example, certain bank accounts, IRAs, or insurance policies allow you to name a beneficiary on that account. If on the accounts that you have already named a beneficiary, then those assets will directly transfer to that beneficiary without involving the Will and will avoid probate and any associated fees. In addition, assets with joint ownership transfer directly to the other party upon your passing and avoid probate. Assets that pass through the Will must go through the probate process.

How do I sign and validate my Will?

In most states you need to sign or execute your Will in front of at least two witnesses, who are adults and are of sound mind. You will need to identify and tell the witnesses that the document you are signing is your Last Will and Testament. Then in front of your witnesses you must initial at the bottom of each page of the Will and sign on the signature line. Your witnesses must watch you initial every page and sign the Will. After that, your witnesses must sign that they witnessed this event and then write in their identifying information- including their full legal name and address.

Who can be a witness to my Will?

A Witness must be an adult of sound mind. It is best to pick witnesses who are disinterested parties- someone who is not a beneficiary of the Will and who has no personal or financial gain in you signing the Will. If a beneficiary is also a witness this can create an impression of impropriety and duress and may even reduce any gift your beneficiary was to receive under the Will and in certain states it may invalidate the Will completely. It is also best not to have your Executor witness your Will, even if the Executor is not a beneficiary. It is best to also use a self-proving affidavit with your Will, if your state allows for it. the Self-Proving Affidavit can be found here.

Do I need to have the signatures on my Will notarized?

In certain states your Will must witnessed and also be notarized. Even if a notary is not required in your state it may still be a good idea to have your signature and the signature of your witnesses notarized, and to also have your witnesses complete and sign a self-proving affidavit. Having a self-proving affidavit is the best approach, as the self-proving affidavit helps facilitate the probate proceeding and reduces the need to have your witnesses come to court to validate