The simple will or last will and testament is the document most people think of when they think of estate planning. In this post, we will look at the legal requirements for executing a will and a viable alternative.
Purposes and Basic Requirements
A will can be used to record how you want your monetary assets to be transferred after you pass away. If you create a will, you name an executor to act as the estate administrator.
You can also designate a guardian for minor children in a will. This is one of the reasons why estate planning is important for relatively young adults who have dependents at home.
Your will must be signed or acknowledged in the presence of two witnesses, and you must state that the document is your will. The witnesses must witness you sign and then sign the will, too, while you must witness them signing.
You do not need to have your will notarized, but as you will learn in the next section, there is a very important reason to do so.
The Probate Process
When you use a will for estate planning and then you pass, the executor cannot act without court supervision and approval. The will must be admitted to probate, and the court will preside and oversee the administration process.
Creditors are notified about your passing, the executor will obtain an Employer Identification Number for tax purposes, and will establish a unique estate bank account.
The will must be “proved” during probate. This means the court will contact the witnesses who signed the will to verify all the formalities were adhered to when it was executed. If there is a notarized affidavit that confirms the testator’s identity and the participation of the witnesses, this step can be avoided. This can be important if for some reason the witnesses are no longer available to testify as to what occurred, as this could prevent the will from being “proved.”
During probate, all assets will be identified and prepared for distribution, and the executor will resolve all outstanding debts. When all necessary tasks have been completed, the assets will be distributed to the beneficiaries in accordance with the terms of the will.
The validity of a will can be challenged during probate. Failure to follow all required procedures during execution is a ground for challenge, so you must be sure to comply with all the witnessing requirements.
In some instances, a person may have been unduly coerced into signing a will. Perhaps a family member who is providing day-to-day care for an elder has threatened to withhold care if the testator does not sign a will leaving a large inheritance to the caregiver.
A will signed under fraudulent circumstances can be ruled invalid, as can one signed by someone who is incapacitated. Since many elders experience cognitive impairment late in life, incapacity is a distinct possibility, and is often coupled with fraud or coercion.
You Can Change or Revoke a Will
It is easy to revoke a will. You can burn it, tear it to shreds, or destroy it in any way you see fit, and it will no longer exist.
Someone else could destroy the will in front of you with your permission. If you prefer more formality, you can execute a document that revokes the original will. This requires the same witnessing requirements as the original will. Finally, you can execute a new will that formally revokes the prior will.
If you want to change you will, it is best if you physically destroy the old one and create a new one.
A Living Trust Can Be a Better Choice
We recommend you consider creating a living trust before you decide on a will as the centerpiece of your estate plan. When a living trust is used, you can include specific provisions, such as spendthrift protections for your beneficiaries, and the distributions from your trust to your beneficiaries will not be subject to probate.
These are just a couple of advantages of a trust, but there are many others. This is why living trusts are widely used by those who have compared the two options side-by-side.
We Are Here to Help!
Today is the day for action. If you have been going through life without an estate plan, you can schedule a consultation at our office in Oklahoma City by calling 405-843-6100. You can also fill out our contact form if you would prefer to send us a message.