法律英语：37 Introduction to Wills

by Michael W. Flynn

First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed 1 to practice in your jurisdiction 2.

Further, I do not intend to create an attorney-client relationship with any listener.

Today’s topic is wills. Several listeners have asked questions, including Cynthia, who wrote

I'd like to understand more about wills. What are the basic components 3 of a "last will and testament 4" and does that vary state to state? Can an individual creating his/her own will rely on software programs or a good web[site] or standard library resource?

Excellent questions, Cynthia. First, the law of wills varies greatly from state to state, so this episode will only focus on some general principles.

Let’s start with a basic definition of a will. A will is simply a document that meets certain requirements and provides instructions for what should happen to your property when you pass away. A “last will and testament” is just a fancy name for a will.

People often wonder if they need a will at all. Nobody is required to have a will, and each state has its own set of “intestacy laws” that provide default rules for how to distribute a person’s property if he or she dies without a valid 5 will. Most states pass a large portion of property to a spouse 6 or domestic partner first, then to children, and then to other members of the family.

But, most people do not want these laws to apply because the default rules do not give anything to good friends, to charities, to your church, etc. So you will need a valid will to make sure that these laws do not kick in.

This brings us back to Cynthia’s questions: what are the basic components of a will? Each state has it's own rules; however there are a few things that almost every state requires for a valid will:

You must be competent. Generally, you must be an adult who understands what you are giving away and to whom. You do not have to understand all the nitty-gritty details about your property. For example, you can give away shares in a mutual 7 fund, even if you do not understand exactly how a mutual fund works or how much it is worth. (If you would like to know more about mutual funds, you might want to ask Money Girl, the host of another excellent quickanddirtytips.com podcast!)

You must sign your will in the presence of witnesses. This means that you must sign your will with other people there with you.

The witnesses must sign in your presence, and understand that what they are signing is your will. These witnesses can be almost any adult. But, it is generally best to find people that are not going to take any property under your will, and people that can be tracked down later in the case that your will gets challenged.

It sounds pretty simple, but believe me, it is not. There is a reason that lawyers make their entire career out of estate planning.

And this brings us to Cynthia’s other questions about software programs or fill-in-the-blank forms. Some states permit you to use these forms as your actual will just by filling in the blanks. Some do not. My advice is that these tools are excellent starting points, but that you should always rely on an attorney to help you.

The law of wills is very complex, and relying solely 8 on a form can result in a faulty will. This can be a huge problem after you die because if a will is not valid, then the default rules in your state will kick in, and your property will not be distributed as you really wanted.

For example, imagine you have a brother you think is a schmuck. You draft your will leaving him out using a form you found on a website, but the state where you live requires three witnesses and the form you downloaded only has space for two. Well, your brother can successfully challenge your will and then the default rules kick in. This creates two problems: your schmuck brother might take under your will, and your other relatives might have to burden litigation costs to defend the will.

Another reason to consult a lawyer is that there can be enormous tax implications for the way you divide up your estate. But, you can minimize the money you have to spend on a lawyer if you think about what your will should include. The more preparation you do, the less money you spend. Here are some things to think about before you contact your lawyer:

Who would I like to represent me and my estate after I die?

Who are all the people I want to take under my will?

Who are the people I do not want to take under my will?

Are there any organizations or charities I would like to provide for?

Exactly how much property do I have now?

How much property am I likely to have when I die?

Exactly what property do I want to go to each person?

Who do I want to get the “residue” of my estate? That is, where should all the property that I did not specifically account for go?

Do I have any retirement 9 accounts that I need to deal with?

Do I have a life insurance policy I need to account for?

How would I like my body taken care of? Buried? Cremated 10?

Who would I like to make health care decisions for me if I am ever unable to make them for myself?

Are there personal messages I would like to leave for loved ones along with my will.

Discussing these issues can be difficult because none of us wants to think about death. But, careful estate planning and execution will ensure that your property will pass exactly as you want.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful 11 Life.

You can send questions and comments to。。。。。。or call them in to the voicemail line at 206-202-4LAW. Please not that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

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