What is a Will?
A Last Will and Testament is perhaps the most important legal document the average person will ever sign. A Will is an instrument that, upon your death, controls who gets your property, who will be the guardian of your children, and who will manage your estate. A Will is limited to your probate assets and has no control over jointly held assets or with a beneficiary designation, such as IRA or retirement accounts. The people or entities who receive your assets are known as Heirs or Beneficiaries.
What is the Purpose of Will?
A Will’s primary objective is to dictate where your probate assets pass at your death. A Will is about property ownership, but it should also be about Asset Protection. A Will can also nominate a Guardian for your minor children, if needed.
Without a Will, Washington’s Intestacy Rules decide where your assets pass and your wishes are ignored. Your Will allows you to select who receives your things at death rather than the State. Though it is possible to leave some assets through Beneficiary Designations or Joint Ownership, a Will gives you much more flexibility. A Complex Will allows you to leave assets in Irrevocable Trusts – called a Testamentary Trust, sheltering the inheritance from the Beneficiary’s possible divorce or creditors. The Will is also an excellent tool to create trusts to help keep assets within the family and away from son-in-laws and daughter-in-laws.
What Are The Requirements That Make a Will Legal?
States rules covering Will execution vary, but there are a few universal rules:
- Eighteen Years of Age and Sound Mind: The person signing the Will cannot be mentally ill or disabled and must be acting of his or her free will, without undue influence.
- Witnesses: Washington requires two witnesses to watch the signing where the person declares the document to be his Will, and then sign as witnesses. The rules about who may or may not serve as witnesses vary.
In most states, you will want your Will to include a Self-Proving page. This page is notarized and then allows the executor to file the Will without the witnesses being present.
Types of Wills:
- What is a Simple Will?
- A Simple Will is not necessarily “simple.” A “Simple Will” only means that all assets pour outright to beneficiaries without a protective trust. So a Will that includes a Testamentary Trust providing protection from divorce, creditors, or doing tax planning is not a Simple Will. These Wills are called Complex Wills.
- Who can use a Simple Will?
- A Simple Will may work for you if: 1) You have no minor children. 2) No need for a Guardian. 3) No need for an Irrevocable Trust to shelter a child’s assets. 4) You have no adult children for whom divorce or creditors is a concern. 5) Your estate is tiny. 6) You have no Estate Planning for a Second Marriage. 7) You have no Estate Planning for a Blended Family. 8) You have no concerns about a Will Challenge. 9) You have no need to avoid probate using a Revocable Trust. 10) Your health is good, and require no Alzheimer’s or Dementia Planning. 11) You have no necessary Special Needs Children planning.
- What is a Complex Will?
- A Complex Will is not necessarily “complex”, it only means that is not a Simple Will. A Simple Will gives all assets outright, a Complex Will does not.
- Who Needs a Complex Will?
- 1) Have a minor child. A Complex Will creates a protective Irrevocable Trust for your child. A Complex Will can name a Guardian of the Person for your child. 2) Have a business that will not end at your death. A Complex Will can perform Business Succession Planning. 3) Have a Special Needs Beneficiary. A Complex Will sets up a Special Needs Trust. 4) Wish to keep assets in the family. A Complex Will can set up a Dynasty Trust. 5) You wish to shelter assets for your spouse. A Complex Will can set up a Disclaimer Trust or an AB Trust. 6) You wish to have assets accumulate. A Complex Will can set up an Education Trust. 7) Have a Large Estate. A Complex Will can perform tax planning, such as creating a Credit Shelter Trust. 8) Need to address issues raised by a Second Marriage or a Blended Family.
- What is a Holographic Will?
- A Holographic Will is a Last Will and Testament entirely handwritten by the testator. A Holographic Will can be a Simple Will or a Complex Will. There are certain criteria for a Holographic Will to be valid and all efforts should be used to avoided.
- The Problems With a Holographic Will.
- Holographic Wills lead to a great deal of expensive litigation. The typical person is neither familiar with the legal issues raised by a Will’s terms or a Will’s complex terms. Overlooking even one word or sentence can create confusion or conflict, which could be avoided using an experienced Estate Planning Lawyer.
- A Holographic Will is especially problematic if: 1) You have minor children. 2) You have adult children for whom divorce or creditors is a concern. 3) Your estate is more than a few bank accounts. 4) You are in a Second Marriage or a Blended Family. 5) You have concerns about a Credit Shelter Trust. 6) You have a Special Needs Child. 7) You are a business owner. 8) You own rental property.
- What is a Codicil To A Will?
- Codicils were popular when Last Wills and Testaments were hand-typed. A Codicil is an amendment to a portion of a Will, leaving the remainder intact. In today’s world, it is usually faster and cheaper to just republish the entire Will.
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If you have any questions about Last Will and Testaments or any other Estate Planning topics, please contact us to schedule a free consultation. At Vancouver Wills and Trusts we focus on estate law. With years of experience we will explain complex estate planning techniques clearly and concisely. We make it easy for you to understand estate planning so you can make the best decisions for yourself and your family.