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Last Will And Testament

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By Igor Krishtul, ChFC, EA

This document is more commonly referred to as a will. Everybody knows what the will is, right? Well, let’s see. The will is an instrument that allows you to provide for disposition of assets after death. This is the primary reason many people make wills.

This is also the very reason many people do not make wills. I don’t have much, so I don’t need a will yet. First, even if you don’t have much today, this can change in the near future. Having a valid will in place doesn’t hurt.

More important, the will allows you to name a guardian for your minor children. The guardian must still be approved by the probate judge. This holds true, even if you name one in your will. Yet, your instructions are given a lot of weight. Having minor children is by itself a solid reason to have a will.

Younger folks are even less likely to make a will. Hey, they are not going to die soon, they still got time. Well, not all people die of natural causes. Even the healthiest young people are not immune to death caused by the acts of nature, accidents, crime or war. So, not being old or terminally ill is not a good excuse. Once you die, you can’t make anything.

In a sense, your will is an opportunity to convey your final instructions from beyond the grave. Each state has its own laws and customs related to the last will and testament. The person making a will is called the testator.

The will’s validity is determined through probate. The probate court may invalidate a will in full. Alternatively, only parts of the will may be declared invalid. The wills may be contested. Usually, this is done by disgruntled heirs.

For a will to be valid, the testator must have the capacity to make one. This requires a “sound mind and body”. It doesn’t mean you have to be in the best mental and physical shape of your life. The key here is that you know and understand what’s going on.

For example, if you suffer from a mental illness, have a mental breakdown, are under the influence of drugs, signing a will may raise serious questions. Likewise, a will cannot be valid if it is drafted and executed under inappropriate circumstances. These include undue influence, duress and fraud.

To make a will, you must also have reached the age of majority in most states. It doesn’t matter how smart or mature the child is. Also, you cannot make a will for your minor child, even if he or she is your dependent.

Obviously, you must sign and date your will. It must be also witnessed by at least two qualified individuals. Having three or more witnesses is even better. Your will revokes all previously made wills.

Living trusts are often used as primary estate planning documents. Even so, you should still have a will. A living trust can indeed provide for a distribution of property after death. Just like a will. But, it’s not always possible – or prudent – to transfer all of your assets to trusts.

Most of your property may have already been transferred to living trusts. In this case, a “pour-over” type of a will can be used. It can specify that assets left in your name at death are added to your trusts and used – or distributed – as directed in your trusts.

Wills and related documents filed in probate courts are open to public. Hence, they do not offer privacy. Virtually anyone can go to the courthouse and see what’s going on.

Now, what happens when an individual dies without a valid will? In such cases, the state government determines how your individually owned assets are distributed. The courts also decide who becomes a legal guardian of your minor kids. You may call it a “default will”.

Generally, it is much better to die with a valid will, than having the fate of your estate decided by government bureaucrats. On the other hand, some wills are drafted so poorly that the heirs could be better off without one.

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