Uniform Will For All States

When you are contemplating end of life decisions one of the most important things you can consider is the making of your last will and testament. When you are compiling your will you will want to meet with an estate planning lawyer to go over the specifics about what should be included. Every state in the Union has its own rules about how a will needs to be drafted, the number of witnesses that need to attest to the will and how it must be presented.

In most states there are 7 requirements to making a valid will. If these formalities are not followed then your will may not be valid and your estate may fall into intestacy. This should be avoided at all costs due to the fact that intestacy will require your assets to be divided amongst your spouse and blood line, starting with your issue. Intestacy can lead to individuals who, were never intended to receive a bequest in the will, receiving some or all of the decedents assets. The 7 requirements of a valid will are:

1. You must be of legal age

2. The will must be signed by the testator or by someone at the testator’s direction; in his, or her, presence.

3. Testator’s signature must be at the end of the will.

a. wills that are signed in the middle of a will will void the subject matter below the signature

4. Testator must sign the will or acknowledge his earlier will in the presence of each witness.

5. The testator must publish the will. This means that the testator will communicate to the witnesses that this is his last will and testament.

6. There must be a certain number of attesting witnesses. This number of witnesses depends on your specific states laws.

7. The execution of the will must take place within a certain period of time from the date the first witness signs the will. For example, if the jurisdiction has a 30 day period and the second witness signs the will 40 days after the first witness the will will be void for lack of timely execution.

Meeting these requirements is the first step to making a valid disposition of your will. If your will is validly executed it will be able to go through the probate process successfully. In order for your will to properly represent your intentions you will need to compile a list of individuals, documents, and information in regards to your intended beneficiaries and you assets.

The 10 main provisions of your last will and testament should include:

1. The document title : LAST WILL AND TESTAMENT

2. Your name, address, and the date of creation of the will. You should state that you are of legal to create a will; are of sound mind and body; that “this is your last will and testament revoking all previous made wills and codicils”; and that you are not under duress or under undue influence to create this will.

3. Your choice of executor. You must include the name, address and any other information that specifically describes your intended executor. You should also designate a “back up” executor in the case that the originally designated executor refuses or is incapable of performing these duties. If you have not appointed an executor then the court will appoint one for you.

4. Your choice of guardianship for minors. If you are a parent one of the most important aspects of a will can be the designation of a guardian for your minor children. In the event that, upon your death, there are no surviving parents, or they are incapable of raising children, the a guardian, and back up guardian should be designated. If this is not accomplished then the court will appoint a guardian based on the best interests of the child.

5. List the details of your beneficiaries. This includes family and friends that you intend to include in your will. When including beneficiaries, be as specific as possible to avoid a dispute. For example, the bequest of “$5 million to bob jones” will be inefficient, especially if you have both a brother and son named bob jones. A better way to phrase this would be “$5 million to my brother Bob Jones residing at 31 estate st., Norwalk, CT.” A bequest to non-living or vague beneficiary will be void for want of specifics. “To my best friend bill” will not be a valid bequest; “to my wife” may distort intentions, especially if the testator re-marries without changing his will; “to my grandchildren” will only include the grandchildren of the testator that are alive at his, or her, death.

6. You will need to include all information pertaining to your probate assets. Probate assets are those assets that are designated in the testator’s name. This includes all individually owned bank accounts, automobiles titled in the testators name, cash, personal property such as watches, furniture, electronics, etc. Non-probate assets are those that are not included in your probate estate and are designated in someone else’s name or in joint tenancies. Examples of non-probate assets include life insurance policies, joint tenancies, trusts, joint bank accounts, pensions, and Payable On Death accounts. All probate assets that are not disposed of in the testator’s will will become part of his, or her, residuary estate and be divided through the jurisdictions rules on descent and distribution.

7. Designate your specific bequests of your assets to the individuals named in your will. The bequests should be specifically written so that correct bequest goes the correct beneficiary. For example, a bequest of “To my brother Steve the painting hanging above the fireplace in the living room.” The testator may have intended a specific painting but at the time of death the painting may have been moved to another room. This may void the bequest. When dealing with the liabilities and debts of the testator those debts will come out of the testators estate in a certain manner. Every state has its rules for satisfying debts through probate assets but the general order that assets will be depleted is in this order: (1) intestate & residuary property; (2) general gifts $5,000 to Steve); (3) demonstrative legacies, a general gift from a specific source such as “$2 million from my bank of America savings account; if there are still debts to paid after this then the debts will be satisfied through the sale of specific bequests, “I devise my 56’ Chevy.”

8. Include your specifics about your funeral arrangements; whether you want to be cremated or buried; where you want to be buried; what clothing or items you wish to be buried in; and any other details that may be important to you.

9. Sign the will at the end.

10. Have your witnesses sign that they witnessed and acknowledged that this your last will and testament. Most states require at least 2 witnesses. If one of your witnesses is also a beneficiary under your will then they may be disqualified from receiving under the will, depending on your jurisdictions rules. This may be saved by the interested witness having the option of taking the lesser of what his specific bequest is, or his share through intestacy. If an interested witness is not an issue, or heir of the decedent then his signature, as a witness, will void his bequest completely. Another way to save a bequest is if the interested witness’s signature is unnecessary. If the law of the state directs that 2 witnesses need to sign and there are 3 signatures then the interested witnesses signature may be treated as if it does not exist.

In addition to these basic steps the will should also include no-contest clauses, specific requirements for the valid destruction of the will, and incorporations by reference. Incorporation by reference is a provision in a will that designates the incorporation of the details of other documents into the will. For example, a provision that states “I leave all the assets designated in a document in my safety deposit box to be incorporated into this will.” Some states do not permit incorporation by reference. You should consult with your estate planning lawyer about your jurisdictions specific rules.