Your guide to making and understanding a Last Will and Testament
Although what you are about to read is fictitious, it comprises a legal will in the United States. This type of Last Will and Testament is prepared by an attorney; it is then signed in the attorney's office and sealed by a notary public. The witnesses to the will cannot be anyone who stands to benefit from the will, such as a spouse or child. This type of will is usually stored in the testator's safe deposit box or kept in the attorney's office for safekeeping.
A fictitious and rather simplified example of a will
I, John William Doe, being of sound mind and body but knowing the uncertainty of life, do hereby make, publish and declare this, my Last Will and Testament, revoking any and all wills and codicils previously made by me. I declare that I am making this Last Will and Testament of my own will, being under no threat of coercion or duress. I declare that I am married to Mary Jane Doe. I declare that I have two natural children: John William Doe, Jr. and Jane M. Doe, both adults. I have no other children, natural or adopted. It is my will that my entire estate of all property, real or personal, wherever located, pass to my wife, Mary Jane Doe. I hereby appoint Mary Jane Doe as executor of my will and direct that she serve without bond. In the event that my wife is not living at the time of my death, it is my will that my entire estate be equally divided between my two children, John W. Doe, Jr. and Jane M. Doe. In this case, I hereby appoint John W. Doe, Jr. and Jane M. Doe as co-executors of this, my Last Will and Testament, and direct that they serve without bond.
Subscribed and sworn to by me on this 9th day of May, 2007 in the presence of the three witnesses below.
John William Doe Notary Public
But what if circumstances change?
Life circumstances change; in this case, suppose that Mrs Doe dies before Mr Doe. In that case, Mr Doe would execute a new will stating that he has no surviving spouse and that he leaves his entire estate to his two children in equal shares. Or, suppose that Mr and Mrs Doe decide to legally adopt a child. Again, the will should be re-drawn to include that child as an heir to the estate of Mr and/or Mrs Doe.
This example is very simplistic, just to give you an example of how wills are written and what they generally contain. Wills are in reality much more complicated than the example, especially in determining the heirs of the testator (the person making the will) and listing the real and personal property of the testator, such as real estate, the homestead, and all personal property including expensive jewelry and other items. The will appoints an executor and directs that all final expenses, such as hospital and funeral costs, be paid. Not forgetting estate taxes! All these matters must be concluded before the will is finally discharged from probate court.
Do I need an attorney? Can't I draw up a will myself?
In the past few years, we have seen quite a few "Do It Yourself Will Kits" for sale in book stores and office supply stores. You will even find online will kits. These kits include generic forms for you to write on or complete with your home computer. If you have a small estate of under $25,000, it is easy to use one of these kits simply to say "I leave everything I own to my wife."
However, if your estate is of considerable size and you have many heirs or specific bequests to your church or your favorite charity, for example, using one of these kits can be a nightmare for your surviving spouse and/or children. If the will kit has any flaws, it will most likely not be admitted into probate court and your surviving spouse and children will be subject to the law of intestate succession just as if you left no will at all.
Hand-written wills are acceptable, under certain conditions
Did you know that hand-written wills can be legally admitted into probate court? This kind of will can be very simple; the law requires that holographic, or hand-written wills, must be written, dated and signed entirely in the handwriting of the testator. For example, you can't ask your grandson to write your will for you. Again, unless you really know what you're doing, holographic wills are discouraged.
Which documents do you need to make a will?
When you see your attorney about making a will, here are some things you should take with you:
- Personal identification documents such as your birth certificate or social security card.
- A list of all your legal heirs such as your spouse, children, parents, siblings, etc.
- A very detailed list of your personal assets; real estate, personal possessions, stocks and bonds, insurance, etc.
- A list of your current debts.
Your attorney will inform you if he/she requires any further information. When your will is finished, you will meet with your attorney to have it signed, sealed and witnessed. Your peace of mind will be enormous, knowing that you have provided guidance for the disposition of your estate upon your death. The very kindest thing you can do for all those who love you is to make your passing easier by leaving a will.
This article is not intended as legal advice. If you have any questions about making your Last Will and Testament, please see your attorney for guidance.
Further sources of information
You may find our other articles in the Death, the law and you section helpful too.
Visit our Amazon store to find books on wills and probate.