A will is a legal document that determines what happens
to your property after your death. A will states who receives
property and in what amounts. Property distributed under the
terms of the will become the probate" estate. Making a
will is a responsibility, as well as a right that is protected
by law.
In addition to distributing or transferring property, a will may
have other functions. It may be used to name a guardian for any minor
children or to create a trust and designate a trustee to handle an
estate (property left after death) on behalf of children or others.
A will may also be used to name a personal representative (or executor")
to handle a decedent's (the person who died) property and affairs
from the time of death until an estate is settled.
Who needs a will?
A person does not need to have a large estate to plan and
prepare a will. Anyone who owns property, whether "personal
property," such as cash, stocks, jewelry or furniture, or "real
property," such as land and/ or a house, should prepare a
will. If married, each spouse should have a will.
When should a will be made?
A will should be made when a person is "legally competent" (of
sound mind and at least 18 years old). It should be prepared while
its maker is in good health and free from emotional stress. In other
words, to make a valid will, you must understand such things as what
property you own, it's value, and who you are leaving it to when
you die.
What happens if a person has no will?
When there is no valid will, the person is said to have
died "intestate." A court appoints an administrator to
handle the decedent's affairs, and his or her property is then
distributed according to a formula fixed by law. The laws for distribution
of an intestate estate are rigid and generally do not make accommodations
for those in unusual need. After payment of taxes, debts, funeral
expenses and administrative costs, the property goes to the surviving
spouse, children and/or relatives. The laws are specific\as to
how property is to be distributed, including which relatives have
priority and how the property is divided.
What are the requirements of a valid will?
Each state has its own laws that determine the requirements
for a legal will. In Washington:
1 . The will must be written, dated and signed;
2. The person who
makes a will (called a "testator") must
be legally competent and acting voluntarily (of sound mind
and free of any improper influence), and be at least 18 years old;
3. The signing of the document must be witnessed by at least two
legally competent individuals (one of whom may be a notary public)
and signed in strict accordance with technical formalities. Witnesses
do not need to know the contents of the will and should not be beneficiaries
(persons who will receive something) of the will.
Handwritten (or "holographic") wills that are not properly
witnessed are invalid in Washington. A will made in another state
in accordance with that state's requirements will be valid in Washington.
What Is probate?
Probate is the legal process by which the affairs of a
deceased person are settled and title to his or her property is
transferred to the heirs. Washington has one of the simplest and
least expensive probate systems in the country.
(For more information, see What You Should Know About Probate, another
Citizen's Rights pamphlet published by the State Bar.)
Can a will be revoked (canceled) or changed?
Yes. A will is effective only at death and may be changed
or revoked at any time before death. A will should be revised to
reflect any changes in circumstances, personal choices or resources.
Changes are often made by a simple document called a codicil (a
supplement to a will), or by redrafting the will. A lawyer should
be consulted when making changes to ensure that changes are legal
and properly made.
When should changes be considered?
A will should be reviewed and updated as conditions and
circumstances change. For example, changes may be necessary when:
- The family changes as a result of a birth, adoption, marriage, divorce
or death;
- Substantial changes occur in the amount or kind of property
owned;
- Tax laws change;
- Residence changes from one state to another;
- The designated executor, guardian or trustee can no longer
serve;
- You decide - for any reason - to change the distribution
of your estate.
How long is a will "good"?
A will is valid until legally revoked or changed, and becomes
final or effective upon its maker's death, In the event of a divorce,
a will automatically excludes the former spouse unless it expressly
states otherwise. (Complications could result however, if no property
settlement agreement of the divorce exists.) Periodic reviews are
important to make sure the will conforms with changing laws -as well
as the will-maker's intentions.
Where should a will be kept?
The signed original document should be kept in a safe place.
As with all vital papers, this document should be stored where
it is protected (such as a bank's safe deposit vault), yet readily
accessible when needed. In Washington, the safe deposit box of
the deceased is not sealed, so someone who has access to the box
can get the will. Arrangements should be made for the will to be
immediately available to the decedent's executor.
A copy of the will that notes the location of the original document,
and a letter of instruction that contains numbers for bank accounts,
insurance policies, credit cards or other financial details, should
also be prepared. The letter may also contain instructions regarding
burial, cremation or anatomical gifts, and should be given to the
executor or will-maker's lawyer. Because this letter may function
as a plan for handling important estate matters, it should be as
complete as possible.
Is making a will expensive?
Considering its importance, the cost of making a will is
modest. A properly drawn will should reduce expenses (and in some
cases, taxes), while simplifying the administration of an estate.
Fees for preparing a will and drafting the necessary documents depend
on a lawyer's experience and expertise, the complexity of the situation,
and the amount of time spent counseling clients and preparing documents.
Approximate costs should be discussed when first consulting a lawyer.
The advice of an expert on this complex subject could prove invaluable
in preserving the value of the estate and assuring that property
is distributed as intended.
Advance planning for the distribution of property, specific bequests
(gifts), and the naming of an executor, guardian or trustee can also
help save time and money. Therefore, before seeing a lawyer, think
about your estate planning objectives and make preliminary decisions
about the distribution of your property. You can facilitate the process
-and control costs- by preparing an inventory of your assets and
listing your various bank accounts, stocks and bonds, insurance policies
and any profit-sharing, retirement and pension plans.
Who should draft a will?
Drafting a will is an important and sometimes complex matter
that involves the judgement and skills of a lawyer. It is a critical
process that requires legal knowledge, informed decision-making
as well as coordination with other estate planning documents.
Although "do-it-yourself" forms and kits are available,
they may not consider individual circumstances and relationships,
and could cause litigation, contested wills and other problems in
transferring property to heirs. A lawyer can assist and advise by
analyzing individual circumstances and preferences, drafting valid
documents, and avoiding pitfalls that alter intent.
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