Trusts and Estates

Preparing a Will

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Each state has formal requirements for preparing and executing a will. The person making the will is called the testator. Generally, the testator must declare that the document that is being signed is the testator's will. The signature must be witnessed by a minimum of two or three witnesses, who must also sign the will in the presence of the other witnesses. Each state has slightly different wording for the testator's and the witnesses' signatures.

Are There Other Types of Wills?

A will that is handwritten and signed by the testator, but has not been witnessed, is called a holographic will. Few states recognize holographic wills and only where all statutory requirements are followed. Oral wills, also called noncupative wills, are only recognized in a few states and only under compelling situations such as when made by a soldier dying in wartime.

A self-proving will is one that is witnessed and executed as required by the state's laws, and it is also signed and witnessed in the presence of a notary public. The benefit of a self-proving will is that it is not necessary to obtain statements from the witnesses at the time the will is probated. A self-proving will saves a great deal of time and effort where it turns out that one or more witnesses cannot be located or are themselves deceased.

Based upon its contents, a will may be categorized as one of the following:

  • A simple will
  • A tax-planned will
  • A pour-over will

A simple will leaves the entire estate (the testator's property covered by the will) to one or more named beneficiaries. No portion of the estate is left in trust.

A trust is made when property is transferred to the management of one person (the trustee) for the benefit of others (trust beneficiaries). A tax-planned will generally disposes of all or a portion of the estate to one or more testamentary trusts, and not directly to the beneficiaries. A testamentary trust is created by the will and it comes into existence when the testator dies. The trusts are used to avoid or minimize death taxes. A pour-over will generally leaves assets to an inter vivos trust - a trust that was created by the testator during their lifetime.

A living will is not used to dispose of property after death. Rather, it expresses your views on the use of artificial life support techniques and other life-sustaining medical procedures. A living will is needed when you are no longer competent to make these decisions and become terminally ill or permanently unconscious. A health care proxy gives another individual the right to make these decisions for you. Living wills and health care proxies are often signed at the same time that a will is executed.

Picking Your Executor

An executor is the person responsible for carrying out the directions in your will. The same considerations that are important in choosing a trustee should be used when deciding upon the executor of your estate. First and foremost, you should choose an individual or institution that you trust.

An executor needs to gather assets, pay debts and expenses, and distribute assets to beneficiaries. The executor does not need to invest assets other than on a temporary basis. On the other hand, a major role of a trustee is to prudently invest the trust assets so as to be fair to all of the beneficiaries. The role of an executor is limited in duration while a trustee might serve for many generations.

Where to Keep Your Will

A will should be kept in a safe place such as a bank safe deposit box or fireproof safe at home where it can be easily located after your death. If the will is kept in a safe deposit box, you must arrange for the executor to have access to the box after your death. Some states put a freeze on a safe deposit box at death, which makes it more difficult to retrieve the will.

Reviewing an Estate Plan

There are a number of occasions that justify the review of the terms of your will and your estate plan in general:

  • When you get married or divorced
  • The birth or adoption of a child
  • The death of a family member or other beneficiary of your estate
  • When an individual named as executor, trustee or guardian dies or is unable to act as such
  • When you decide to name someone else as your executor, trustee or guardian

Your will should be reviewed if:

  • The size of your estate changes significantly
  • You move to another state
  • There are changes in federal or state laws that could affect your estate

Revising a Will

A will may be revised in three ways:

  • Minor changes can be made to a will by preparing an amendment called a "codicil." A codicil needs to be executed with all the formalities required for signing a will but it need not restate all of the unchanged provisions in the will
  • A will may also be changed by preparing a new will revoking the prior will or by destroying the old will. Care must be taken when destroying a will to avoid intestacy (death without a will)
  • A will may also be changed by independent events such as divorce or adoption. In certain states, a divorce automatically revokes any bequest to the former spouse. In other states, laws provide that a divorce revokes the will entirely. A new will should be prepared in order to remove the spouse as a beneficiary and/or fiduciary. The beneficiary designations on life insurance policies and retirement benefits should also be reviewed

Questions for Your Attorney

  • How much will it cost for you to help me prepare a simple will?
  • What kind of tax-saving benefits could I achieve with a testamentary trust?
  • Are holographic wills valid in my state?
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