Last Will and Testament
26.06.2021

A last will and testament is a legal document in which an individual, or testator (the person who leaves the will), can determine how their property and personal possessions are handled after their death. Your will includes necessary details about how assets are divided among your beneficiaries. A beneficiary can be anyone who the testator names to gain any of their possessions and property left in the will. Moreover, it can name your choice of an executor, which is the person who is put in charge of your affairs and your estate at the time of your death.

Wills are imperative because they allow you to choose your own beneficiaries and executor and minimize the risk of legal disputes following your death. This protects the interests of both the deceased and their loved ones. If an individual dies without leaving behind a will, the court will view their estate as intestate, meaning there is no valid or binding declaration of inheritance, like a last will and testament. If an individual dies intestate, the estates and other assets are distributed according to the laws of Descent and Distribution of the state the individual was a resident in. Any real estate or properties (businesses, vacation homes, etc) owned out of state would be distributed according to the laws of that state. Additionally, your loved ones would need to prove to the court that they are your true heirs and the estate would be administered under court supervision, extending the probate process and delaying the closure your family needs.

A will gives you the power to decide how your assets are divided, regardless of value or amount. It is also important to remember that a will allows you to name a guardian for your children. Other determinations you may make in your will include anatomical gifts (such as organ donations), your wishes for your funeral rites, and bequests to specific individuals or entities, such as your favorite charity.       

Requirements of a Last Will and Testament

Will requirements are set by each state’s laws. For a will to be considered valid after the testator’s death, three elements must be present. First, one must be competent and of sound mind and body when writing or having their will written.  The proof of any pressure or threat of violence that influences the individual can invalidate their will. Second, the document must meet requirements based on the Statute of Wills in order to determine the testator’s intention. There are slightly different requirements depending on the state of residency. However, most generally require two witnesses to be present when the testator is executing their will. Third, there must be clear intention for the document to have the legal effect of a will.  This includes any language on the document like “I declare this document to be my last will and testament.”

Execution of a Last Will and Testament

Having a will that meets the legal requirements of your residential state makes the probate process simpler. State laws can override certain parts of your will that include illegal divisions, like that of life insurance. Illegal divisions include any property or assets the court does not allow to be written in the will. These include retirement plan proceeds and pensions, which usually have a determined beneficiary at the time they are initiated.

The probate process begins when the will is proven to be valid. None of the individual’s assets can be divided before then. Family members and others named in the will are notified of the process and if the will has been prepared according to the legal requirements of the state and is unchallenged, then the division of assets to beneficiaries can happen. An experienced attorney at John Onal & Associates PC can help prepare your last will and testament to ensure that your personal possessions and property are handled in a manner of your choice after your death.         

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