Without a will, your property will be distributed according to the laws of your state. The laws of your state also govern the validity of a will.
What are the requirements?
Requirements vary from state to state. Generally, for your will to be valid, the following requirements must be satisfied.
Your will must be properly executed. Generally, this means that the will must be:
- Written--The general rule is that a will must be written. Usually, the will is typewritten or in some printed form. The one exception to the general rule is a nuncupative (oral) will. Nuncupative wills are generally valid only if made during your last illness and only if the witnesses reduce it to writing very soon afterward.
- Signed by you (the testator)--You or someone in your presence and at your direction must sign the will.
- Witnessed--Generally, your signature must be witnessed by two competent persons. Some states require three witnesses and some require no witnesses in certain cases, such as when a holographic will is executed. A holographic will is a will that is valid despite not being witnessed because it is completely in the testator's handwriting. Other states may also require that the signatures be notarized.
What does your will do?
Probably the greatest advantage to a will is that it allows you to avoid intestacy. State intestate succession laws, in effect, provide a will if you fail to do so. This "intestate's will" distributes your property the way the state thinks you would have if you had made a will (i.e., to your spouse or closest blood relatives). However, this may not necessarily be what you would want. Also, intestacy has many other disadvantages (e.g., thwarts tax minimization planning).
- Distributes property according to your wishes
- Nominates a guardian for your minor children
- Nominates an executor
- Specifies how to pay estate taxes and other expenses
- Minimizes taxes
How do you make a will?
Although a will need not be drafted by an attorney to be valid, it is highly recommended that you seek an attorney's advice to ensure that your will does what you intend.
- Determine what you leave in your will
- Tell someone your funeral wishes
- Choose your beneficiaries
- Select a guardian for your minor children
- Select an executor
- Draft a will
- Properly execute the will
- Store the will in a safe, accessible place
Review your will annually or upon certain events, such as a birth of a child or you move to another state.
Can you change or revoke your will?
You can amend or change your will by executing a codicil. A codicil is a separate, written, and formally executed document that becomes part of your will. A codicil generally should be used only for minor changes to your will. You should execute a new will if there are many changes or a major change.
Revoking your will must be done very carefully. If not done correctly, the will remains valid until properly revoked or superseded. Most state laws require that the will be revoked by a subsequent instrument (a new will) or by a physical act (e.g., destroying or defacing it). That means that the will must be burned, torn, or canceled with the intent to revoke.
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