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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 beneficiary. For example, certain bank accounts, IRAs, or insurance policies allow you to name a beneficiary on that account. If on the accounts 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.

What is probate?

Probate is the legal process of settling an estate. The probate process varies by state.

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.

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 the Will and their signatures. However, your Will is still valid without a self-proving affidavit.

What is a self-proving affidavit of execution?

A self-proving affidavit of Execution is signed after you, the testator, and the witnesses sign the Will. The self-proving affidavit states that the witnesses witnessed the signing of the Will, called the will execution, and that it was done properly. Further, the affidavit can also attest to the fact that you, the Testator, identified the document as your Will and that it was prepared in accordance with your wishes and instructions and that you were not under any duress or restraint when executing the Will and was competent. The affidavit is then signed, dated and notarized and should be kept together with your Will. By having a self-proving affidavit your witnesses will not need to testify in court when your Will is submitted for probate. This saves your estate additional expenses and prevents delays. The affidavit is also helpful is one of your witnesses should die before you or cannot be located to appear in probate court to validate your Will.

Your will is still valid without a self-proving affidavit, however there is the possibility of delay and additional expenses that your estate may face in locating the witnesses.

Where should I keep my Will?

It is especially important to keep you Will in a safe, yet accessible, location. This way your family members will be able to access the Will after your passing. It is important to at least tell your Executor where the Will is being stored and provide your Executor with the needed information to access the Will upon your passing. For example, keep the Will at home in a fireproof safe and give the safe combination to your Executor so that they can access it upon your passing. Do not store the will in a bank safety deposit box held solely in your name or any other location where your family will need a court order to access the Will. You can also file the Will with the court system in your area, but do not have to. In addition, you should only have one original copy of your Will.

How can I change my will?

Sometimes you may need to update or change your Will, especially after certain important life moments-such as getting married, getting divorced, having children, or the death of an Executor or beneficiary. it is also possible that you may not need to update your Will. However, if you do update or change your Will keep in mind that the only version of your Will that matters the most is the most current, valid one at the time of your passing.

In order to change your Will-- you can either write a new one to replace the old one and get rid of the old one by tearing it up or you can add something to your Will through an amendment, by using a document called a Codicil. However, you will need to ensure that the Codicil is executed properly to be valid.

What other related documents should I create with my Will?

It is a good idea to also create:

  • a Power of Attorney;

  • a Living Will- also called a Health Care Directive; and

  • a Funeral Plan.

A Power of Attorney is a legal document that allows you to appoint a person to make financial decisions on your behalf while you are alive, the agent may have broad or limited powers to act on your behalf. A Living Will, also sometimes called a Health Care Directive or a Medical Power of Attorney-is a legal document that allows you to lay out your wishes and instructions regarding your health care, when you are unbale to make those decisions on you own, such as when a person is incapacitated. A Funeral Plan allows you to plan your funeral and designate an individual to carry out those wishes for you upon your passing.

Signing Requirements:

In most states, you will need at least (2) disinterested witnesses in order to create a will. A Disinterested Witness is someone who is not a beneficiary in the will and preferably not related to you. It is always a good idea to consult with a local attorney.

It is also a good idea to create a Self-Proving Affidavit. Even thought this Affidavit is optional, it is a good idea to create one as it is used to confirm that this is your actual will and will help in the case that your will is challenged in court. The Affidavit given under oath states that the witnesses saw you sign your Will and state that this is your Will, made of your own free will, and your wishes to be carried out . This affidavit should be attached to your Will. The Self- Proving Affidavit needs two Witnesses and a notary.

Please see below for some State Specific Requirements. It is a good idea to check your state laws as to the specific signing requirements for a will and it is always a good idea to consult with a local attorney if you have any additional questions or concerns.

Last Will and Testament Signing Requirements:

In most states you need two witness for a Will. In Colorado and Louisiana you need two witnesses and a notary public.

Self-Proving Affidavit Signing Requirements:

Most states require two witnesses and a notary for a Self-Proving Affidavit.

Maryland, Ohio and Louisianan and Washington D.C. do not allow for self-proving affidavits. If you live in any of these areas DO NOT attach a self-proving affidavit to your Will.

Mississippi, Connecticut, Oregon, Rhode Island, South Carolina, Tennessee and West Virginia require 1 witness and a notary for a Self-Proving Affidavit.

Colorado and Louisiana require two witnesses and a notary public.

Illinois required two witnesses, but no notary.

Indiana and New Hampshire do not require a separate affidavit.

California requires 1 witness and no notary.