What is a Will: Essential Steps, Types, and Legal Requirements Explained

A Will is a legally binding document that states the wishes of a Testator regarding the distribution of the estate to the beneficiaries. An individual who wants to write a Will must take various steps that are in conformity with the laws. 

These laws vary from state to state, hence the recommendation to use a Lawyer to assist in creating a Will. The lawyer will further help you decide on the type of Will that fits your circumstances.

What is a Will?

A Will, or a Last Will and testament, is a legal document that describes how you (the testator) would like or wish your property and other assets to be distributed to your beneficiaries or heirs after your death. The Will can further state who your children’s or pets’ guardians will be.

Without a Will, your property and assets will be distributed by the probate Courts. 

A Will must comply with all the rules and regulations on writing a will, execution, witnessing, etc., to be legally binding.

What are the Four Legal Terms You Should Know in a Last Will and Testament?

When writing a Last Will and Testament, there are various legal terms that you will come across that you should know the meaning to enable you to understand your Will better. Some of the Legal Terms are; –

1. Testator

A testator is the name given to a person who has written and executed a Will that is in effect at the time of their death.

1. Executor

An Executor is a chosen individual by the Testator who is responsible for making sure the wishes in the Will are followed. The executor can be your spouse, child, an adult family member, a close friend, or a Lawyer.

1. Beneficiary

A Beneficiary is someone who receives property or assets that are left for them in a Will by another individual. 

1. Probate 

Probate is a legal process in which a court of law reviews a will and determines whether it is valid and authentic and, thereafter, proceeds to settle the estate. Probate can be done whether there is a Will or not.

What is the Main Purpose of a Last Will and Testatement?

The main purpose of a Last Will and Testament is to allow a testator to plan how to distribute their assets and care for their family after they die.

When the testator dies, his Will states his wishes on what will happen to his property and further appoints guardians in the event of minor children or pets, leaving everything taken care of and bringing some peace of mind during the difficult moment.

What are the Steps for Creating a Will?

When creating a Will, there are steps that you need to follow; –

1. Have an inventory of all your assets
2. Decide on who will be the beneficiaries of your estate
3. Choose a guardian for the minor children and pets
4. Appoint an executor
5. Create your Will on your own or with the assistance of a Lawyer
6. Execute your Will according to the law
7. Have your Will witnessed by competent witnesses who should sign the will
8. Store your Will in a secure location
9. Update your Will as needed

What are the 10 reasons to Make a Will?

A Will is an essential document to any individual, and below are the ten reasons to make a Will; –

1. Decide on who will inherit your estate and who will not
2. Choose who will take care of your minor children
3. Save time, money, and stress for your loved ones
4. Avoid family conflicts
5. Decide who will be responsible for administering your estate
6. Be able to make gifts and donations
7. Provide a home for your pets
8. Leave funeral instructions to your loved ones
9. Facilitate for easy probate process
10. To gain peace of mind that everything is planned for

How Much Does a Will Cost?

Creating a Will can range from an average of $250, depending on whether you use a do-it-yourself will template obtained online or seek the assistance of a Lawyer who will guide you through the various types of Wills available, depending on the circumstances and the size of the estate.

What Does a Will Do?

A will is a legal document that describes how you would like your property and assets, which form your estate, to be distributed after your death. The Will ensures that your property is inherited by your desired beneficiary and that your children are provided for and taken care of through an appointed guardian.

What Does a Will Not Do?

A will does not distribute jointly owned property, life insurance policies, or property included in a trust.

Why is a Written, Witnessed Will the Best?

A written and written will is the best as it ensures that your wishes are enforced because you will not be around. The individual you informed of your wishes, if made orally, may not be around, or they might make changes to your wishes. Having your will witnessed is to make sure that the content is true and correct.

Who Can Witness My Will?

A witness to the Will can be an independent adult who is not related to the testator and has no interest or benefit in the Will.

Can I Write My Own Will?

Yes, you can Write your own Will. Once you have gathered all the necessary information, you can go ahead and state your wishes while complying with the required regulations and making sure the Will is Witnessed and signed for it to be valid. You can seek further clarification from a professional from LegalPen to guide you in writing a Will or assist you in complex estates.

How Do I Validate a Will?

It is crucial to ensure your will is valid, as it could lead to an array of problems in the future. You can validate your Will by making sure it is Written or done by the testator and signed by the testator at the end of the Will. When the testator is signing the Will, at least two independent witnesses must sign it.

The testator must have a mental capacity to write the will, which entails understanding what they are doing and the effects of the will.

The most important aspect of validating a Will is that the Will and the signature be made voluntarily and not through force or coercion, as this is one of the grounds for invalidating a Will.

Do I Need an Attorney to Write My Last Will and Testament?

No, you do not need an Attorney to Write your Last Will and Testament. However, consulting an Attorney on the legal technicalities is important as they can guide you through the legal jargon entailed in will writing, and you can further instruct an Attorney to write your Will in a very complex estate that requires a lot of paperwork and time.

What Happens if I don’t have a Will?

When you do not have a Will, and you die, you will be considered to have died intestate, without having left behind any specific instructions on what should happen to your estate. The probate Court will step in after the application by your beneficiaries to distribute your estate according to the intestacy laws, in which, in most cases, the property will be distributed to family members, including a surviving spouse, children, parents, siblings, aunts, uncles, nieces, nephews, cousins, and distant relatives. In the event the state cannot locate any living relatives, your entire estate will excheat to the state.

You can obtain a basic simple last Will and Testament at LegalPen.

What are the Types of a Will?

There are different types of Wills that can be used depending on the situation or the circumstances. These Wills are; –

1. Simple Will

A Simple will, known as a basic Will, is the most common type of will in which you decide who will receive your assets and name a guardian for your minor children in the event of your death.

1. Testamentary Trust Will

A testamentary trust will place some assets into a trust for the benefit of your beneficiaries, and they name a trustee to handle it.

1. Joint Will

This is a Will made by two testators who sign the joint will to create a shared estate plan typically used by domestic partners or spouses who want the other will-maker to inherit their assets upon death.

1. Living Will

A living Will allows you to choose what medical treatments you want to be administered in the event you are incapacitated and appoint someone to make decisions on your behalf.

What are the Benefits of Having a Will?

Having a Will in place before you die is beneficial in that; –

1. You make your wishes known
2. You provide for those you choose as your beneficiaries
3. You protect your children by appointing a guardian for them
4. You protect your estate from being contested upon
5. You have comfort and ease of mind that your affairs will be taken care of after your death.

What are the Disadvantages of Having a Will?

Depending on the type of wills, there are various disadvantages of having a Will, which are; –

1. They can be challenged so long as there is a proper reason
2. They do not have any tax benefits
3. They are not private since they go through the probate process and become public records.

Can I Share my Will with my Spouse?

Yes, you can share a Will with your spouse. This type of will is known as a Joint Will, which is made by two people and acts as a last will and testament for both. It has specific rules, including that after the death of one spouse, that spouse’s entire estate will go to the surviving spouse. This is the best type of Will for married couples, and a lot of questions will be asked, such as, does marriage override a will? The answer is it does not necessarily override a Will but affects the Will as marriage typically grants the surviving spouse a significant portion of the estate, and in some states, a marriage automatically revokes any prior wills unless the will was made in contemplation of marriage.

Why Should Parents Have a Will?

As a parent, it is important to have a will. This ensures that your partner and family are provided for, your estate will be divided according to your wishes for their benefit, and, most importantly, a guardian is in place for your minor children.

What You Should Never Put in Your Will?

When writing your Will, you should never include any secret or secure information, as the will goes through probate, which is a public process, and anyone can access the court records.

How Do I Change or Update My Will?

You can change a will by revoking it and making a new one. This is done by including a statement in the new will stating that you revoke all previous wills and codicils.

It is advisable to update your will regularly. It is important to learn how to update a will without a lawyer by following your state’s legal requirements to ensure the updated will is valid. This can be done by creating a codicil, which is an addendum that you should sign and have two witnesses witness the signing.

How Often should I Change my Will?

It is recommended that you review and update your Will every four to five years or after every major life event, such as marriage, divorce, death in the family, birth in the family, medical care, or increase or decrease in financial situation. Any individual can be curious about how long is a will is good for and what you find is that it remains valid until revoked or replaced by a new Will. A Will does not have an expiration. However, reviewing it often helps ensure your family stays protected.

How to Choose an Executor in a Will?

An executor of a will is the individual responsible for distributing your assets in accordance with your wishes. Therefore, choosing the executor is an important process. Your executor should be someone you trust, who is qualified, an adult, and capable of handling the day-to-day activities involved in distributing your assets.

Where to Keep or Store a Will?

You should store your will in a safe location that is both water—and fire-proof and easily accessible in the event of your death. Examples of where to store your will are a safety deposit box, an office safe, with the lawyers, or with the probate court.

What is the Difference Between a Will and a Living Will?

The difference between a Will and a Living Will is that in a Will, you decide on who you want to inherit your property after you die, and it only comes into effect after your death. In a Living Will, you outline your desired medical treatments in the event you are unable to communicate your wishes to your doctors or loved ones, and it is effective during your lifetime.

What is the Difference Between a Will and an Estate Will?

The difference between a will and an estate will is that a Will covers what will happen to your family and property after you die, while an Estate Will includes a will and other documents protecting your family and property while you are alive but incapacitated.