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Last Will and Testament: What is it and Why do you need it? 

What is a last will and testament? 

Picture of a lawyer and her client.

The fear of death is why many Americans do not have a last will and testament. The idea of writing a will is gloomy and even a bit scary. Nonetheless, a will is a great way to manage finances and protect one’s family in the event of death. Beyond the fear of death, some people haven’t created a will because they continue postponing the task and setting it for another day.

We all like to believe we will live into our 80s or 90s; therefore, we do not feel we need a will now. However, this is untrue; death is unpredictable, and no one knows when they’ll pass on. It’s best to plan for the inevitable by creating a will and estate plan as soon as possible. 

In this post, you will learn about the last will and testament, the different types of will, and how to write a last will. In addition, you will see answers to the most frequently asked question regarding the last will and testament.

What Is a Last Will and Testament?

A last will and testament is a legal document where a person can write their final wishes regarding what happens to their possessions after they pass on. It specifies who should get your stuff and who is in charge of making it happen. The last will and testament need to be signed by an individual who’s of sound mind and mentally capable.

A last will and testament are only valid if written according to the deceased home town’s state laws. Most American states have guidelines, such as requiring the signatures of two unrelated adults. For instance, according to the Florida statutes, execution of a valid last will and testament means signing the document in the presence of two witnesses.

Writing a will allows you to designate an executor (the person in charge of dispersing your assets) and a legal guardian for your children. A will can also include arrangements for surviving accounts or care of another individual, such as an elderly parent. If you pass on without a will, the probate court in your state will decide what happens to your possessions and who becomes your children’s guardian.

Once you’ve created a will, revising it regularly to reflect life changes is critical. You may want to include new beneficiaries in your will, such as a new grandchild or an asset. You may also wish to remove someone from your will. Your last will and testament should always be kept current, and the best way to achieve this is to retain a law firm that will remind you between intervals.

Why is the Last will and testament important?

The last will is an essential document because it gives the testator (the person who made the will) control over what happens to their property and possessions after they die. If you die without a will, your state’s laws of intestacy will determine who gets your stuff and who becomes the legal guardian of your children.

Making a last will and testament is the best approach to guarantee that your final desires are carried out and that your loved ones are cared for after you pass. A will also greatly simplify the probate procedure (the legal process of estate management) for your loved ones.

Types of will  

What Is a Last Will and Testament and Why do you need it? 

Types will. 

1. Oral, Testamentary will, Joint will and Holographic will.

There are four common types of will; each one has distinct characteristics and exercises various powers. The features of a particular will depend on the circumstances surrounding the testator(the person who made the will)

 The Testamentary Will

This type of will is also referred to as the testamentary will. It is a formal written will that expresses the testator’s desires in a clear and concise manner. The will maker must sign it in the presence of at least two witnesses and will also be notarized. 

The specific details the testator must include in the will for it to be recognized legally differ from state to state. For instance, in Florida, a will is only valid if the testator executes the will voluntarily, and it’s signed in the presence of at least two credible witnesses.

The Oral Will

In an oral will, the testator communicates their last intentions verbally to one or more witnesses, and there is often no written record of the conversation. A significant number of jurisdictions either do not recognize this kind of will or recognize it only in the most extreme of circumstances like a deathbed situation. In Florida, oral wills are not recognized. 

The Holographic will. 

A holographic will is drafted and signed by the testator without the presence of witnesses or the signature being notarized. It is frequently handwritten, although it does not have to be official. Holographic wills are acceptable in many American states but not in Florida.  

Florida does not recognize holographic wills because no evidence supports its legitimacy. A handwritten will is valid according to Florida state laws only if it has been properly signed and witnessed.

The Joint will.

A joint will is a document signed by two (or more) persons that combine their separate wills into a single, combined will and testament. A joint will, like other wills, allows the will-makers to choose who will inherit their property and assets when they pass on.

Married couples are the most likely to form joint wills. They often state that:

  1. When one spouse dies, all of the couple’s property passes to the surviving spouse.
  2. When the surviving spouse dies, the remaining property passes to the couple’s children.

One partner cannot amend or cancel a joint will without the other partner’s approval, which is perhaps why it’s appealing. A joint will also prevent a surviving spouse from altering their agreement on what to do with their property when the first partner passes away. The joint will agreement stays valid even if the surviving spouse remarries, has more children, or has to sell the property to pay expenses.

Parts of a last will and testament.

Most last wills and testaments contain the following elements:

  • The date of the will.
  • A statement that this is the testator’s last will and testament.
  • The names and addresses of the executor and any alternate executors.
  • The name and address of the individual who will serve as guardian for any minor children.
  • A list of the testator’s assets and debts.
  • A list of the people who will receive the testator’s assets (beneficiaries).
  • The testator’s signature.
  • The signatures of at least two witnesses.
  • The date of the witnesses’ signatures.
  • A notary public should witness the will.

How to write a will.

Specific step-by-step processes are taken when writing a will. It may seem like it’s easy to achieve, but the truth is that it’s better to employ the services of an experienced estate attorney. The following are some basic steps taken in preparing a will:

The first thing you need to do is list all of your assets and debts. This will include everything from your savings and checking accounts to your house and car. Make sure you include the names and addresses of any beneficiaries as well.

Next, you will need to designate an executor or personal representative. This is the person who will be in charge of carrying out your wishes after you pass away. You will also need to choose a legal guardian for any minor children.

Once you have all this information, you need to put it into a legal document. This can be achieved with the help of an experienced attorney. Make sure you sign and date the document and have it witnessed by two people who are not related to you.

Keep your will in a safe place where it can be easily found. You may want to keep it in a safety deposit box or give it to your executor for safekeeping. It’s best to work with an attorney because they will provide legal advice and ensure your will is properly executed and filed.

What happens if you pass on without a will.

If you pass on without a will, it is called dying “intestate.” This means that the government will have to step in and figure out how to distribute your property. If you have a payable on death account, the money in that account will go to the person you designated on the account. However, if you do not have a payable on death account, the estate will go through probate to determine who your heirs are and how to distribute your assets accordingly.

The Probate process is usually lengthy and costly, so it is best to avoid it if possible. The best way to do this is to ensure you have an estate plan or a valid will in place. If you don’t have a will, your family may go through a lot of unnecessary stress and expense after you’re gone. Work with an experienced attorney to ensure your last wishes are properly carried out.

Remember that a will is just one component of a good estate plan. It would be best if you also had a power of attorney, a trust, and a living will. These documents will help ensure that your wishes are fulfilled even if you become incapacitated. An estate plan is critical to protect yourself and your loved ones. Make sure you have one in place today. Contact the DeVries Law firm and schedule a free consultation.

Frequently Asked Questions Regarding wills.

What kinds of property aren’t controlled by a will? 

There are a few types of property that aren’t controlled by a will. These include:

1. Property held in a trust
2. Jointly owned property
3. Life insurance proceeds
4. Retirement benefits

 How Long Does a Will Stay Valid?

A will is typically considered valid for as long as the person who created it (the “testator”) is alive. However, there are a few circumstances under which a will may be contested or invalidated. These include:

1. If the testator didn’t have the mental capacity to create the will
2. If the will was created under duress or coercion
3. If the will was forged or otherwise tampered with

 What are the consequences of dying without a will?

If you die without a will, it is called “dying intestate.” Your state government will need to step in and determine how to distribute your property. This process is called probate, and it can be long and expensive. It’s best to avoid dying intestate if at all possible. The best way to do this is to make sure you have an estate plan valid will in place.

What is a Pour-Over Will?

A pour-over will is a type of will used with a trust. Essentially Pour-over wills are typically used when someone has created a trust but hasn’t transferred all of their assets into it. When the person passes on, the assets that are not in the trust are “poured over” into it and subject to the trust’s terms.

How do I avoid probate?

There are a few ways to bypass probate. One way is to create a living trust. Another way is to designate beneficiaries on your accounts (such as retirement accounts or life insurance policies). Finally, you can also give away property during your lifetime.

How Can I contest a Will?

If you believe a will is invalid or should be contested for any reason, you must file a lawsuit in probate court. This is a legal process, and you should consult with an attorney before taking action.

What is the difference between heirs and designated beneficiaries?

Heirs are people who inherit property from a person who has died without a will. Designated beneficiaries are people named in a will or other legal document as the recipient of particular assets such as life insurance or a retirement account.

What are the executor’s responsibilities?

The executor is responsible for carrying out the terms of a will. This includes locating and inventorying the deceased person’s assets, paying debts and taxes, and distributing the remaining assets to the beneficiaries.

 Can I revise my will?

Yes, you can change your will anytime if you are of sound mind and body. There are a few ways to do this, but the most common is to create a codicil. This is simply an amendment to your existing will that outlines the changes you want to make. You will need to sign and date the codicil in front of witnesses, just as you did with your original will.

How often should I update my will? 

You should update your will whenever there is a significant change in your life, such as getting married, having children, or acquiring significant assets. You should also review your will periodically to ensure that it still reflects your wishes.

Can I write a will without a lawyer? 

No, it is not advisable to write a will without the help of a lawyer. Wills are legal documents, and many rules and regulations govern their creation and execution. If you make a mistake, it could invalidate your will entirely. It’s best to work with an experienced attorney to ensure that your last wishes are carried out correctly.

​​What Is the Difference Between a Last Will and Testament and a Living Will?

A last will and testament is a document that outlines your wishes for how your property should be distributed after you pass on. On the other hand, a living will is a document that outlines your wishes for medical treatment if you cannot make those decisions yourself.

What is the difference between a will and a trust? 

A will is a document that outlines your wishes for how your property will be distributed after you pass on, while a trust is a legal entity that can hold assets on your behalf. Trusts can be used for various purposes, including avoiding probate, managing assets during your lifetime, and reducing taxes.

Besides having a will, what else can a person do to prepare for incapacity or death?

You can do a few things to prepare for incapacity or death. Start by making medical decisions in advance, designating beneficiaries on your accounts, and choosing a guardian for surviving children. You should also have a durable power of attorney and a healthcare proxy to ensure that your loved ones can make decisions on your behalf.

Must I have a will?

If you pass on without a will, your property will be distributed according to your state’s intestacy laws. These laws dictate how property is distributed among surviving family members, and they may not reflect your wishes. For this reason, it is in your best interest to have a will, even if you don’t have many assets.

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