Wills and What You Need to Know
Wills are used to disperse and designate one’s estate and assets after their death. They are fundamentally important and can have repercussions on the people or institutions you care about that extend for generations. Unfortunately, despite its importance, composing a valid will can often be overlooked or even put off by some.
While still an important feature, a will does more than simply ascribe material possessions to a list of beneficiaries. A valid will offers invaluable peace of mind as well as closure. To know that a lifetime of hard earned assets will go the family, friends, causes or charities you support can eliminate tremendous uncertainty.
But this peace of mind is only afforded if a will is filed correctly, the first time. While there are many important facets in composing a will, there are also certain fundamentals of which one must be made aware.
LEGALLY VALID WILLS
Certain aspects of estate planning can vary by state so it is important to check your own state’s specific guidelines. More universally applicable rules regarding wills often include necessitating a witness to verify the validity of the will while it is being officially recorded. For its official recording, the person must be acknowledged as possessing a “sound mind”, fully understand the consequences of their will and was not coerced in its drafting.
An executor must also be assigned to carry out the wishes of the will after the death of its writer. The executor should be someone that can be trusted as well as capable of fulfilling the will’s intent.
LIMITATIONS ON WILLS
It is important to note that a will cannot violate preexisting laws. Some states that have heirship laws require the children of a decedent to be listed as that person’s heirs, regardless of the wishes of his or her will. States with community property marriage laws can also affect the distribution of possessions in regard to spouses. States with community property laws include:
- New Mexico
To some, the thought of composing a will can seem an intimidating prospect. This does not make the process any less important. Thankfully, if you are under the age of fifty, healthy, and your assets will not be subject to estate taxes, then a “simple will” can serve your needs. Simple wills distribute the decedent’s assets after their death. They choose someone to act as executor of the estate, name a guardian for children involved, as well as someone to oversee their children’s financial affairs.
While the process is expedited, simple wills are still subject to probate proceedings. This is another reason that securing a trusted executor is often one of the first steps suggested when creating a will of any kind.
CHANGING A WILL
After composing a will, it is not necessarily set in stone. Wills are often amended for numerous reasons but it is important to make sure these changes are done in the proper fashion to make sure that they are effectively implemented. If new property has been obtained, if heirs have been changed or added, or if other significant life changes have occurred, it is important to update your will.
Courts generally side with the most recent version of a will to avoid confusion. When changing a will, the most effective measure is one of the simplest. This is why it is important to include a paragraph in the more recently updated version that clearly and implicitly states any previous versions are void and have no legal effect.
CHALLENGING A WILL
A will can be challenged if there is suspicion that the decedent was either manipulated or coerced into the creation and signing of the will. The same can result if the decedent’s signature appears fraudulent or forged. In some cases, multiple versions of a will can cause a challenge in determining which one is legally binding.
While the state can determine its own extenuating circumstances to challenge the validity of a will, for an individual to challenge a will they need to first prove that they have standing. To prove standing an individual must display proof that they are either a beneficiary named in the will or heirs, regardless of whether or not they were originally included. Any other parties that would otherwise be affected by the results of the will may also hold standing to challenge the will’s decisions.
ESTATE PLANNING OVERVIEW
Because one’s will does not take effect until after they pass, they cannot correct any unforeseen results that may arise. For better or worse, the fallout from a will upon one’s friends and family can be monumental. That’s why it is always wise to seek the advice of seasoned professionals.
The law firm of LaMonica, Coleman and Martello specializes in probate, wills, and estate planning. They can guide you through every step of the process with the expert knowledge that has helped so many other clients obtain that well-earned peace of mind.
All initial legal consultations with us are 100% FREE. Call us at 216-696-0800 and let’s discuss, one-on-one, what’s best for your future.