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Again, requirements vary from state to state. An administrator will most likely be a stranger to you and your family, and he or she will be bound by the letter of the probate laws of your state. As such, an administrator may make decisions that wouldn't necessarily agree with your wishes or those of your heirs. No, you aren't required to hire a lawyer to prepare your will, though an experienced lawyer can provide useful advice on estate-planning strategies such as living trusts.
But as long as your will meets the legal requirements of your state, it's valid whether a lawyer drafted it or you wrote it yourself on the back of a napkin. Do-it-yourself will kits are widely available. Conduct an Internet search for "online wills" or "estate planning software" to find options, or check bookstores and libraries for will-writing guides. Your state's departments of aging also might be able to direct you to free or low-cost resources for estate planning.
And while you're working on your will, you should think about preparing other essential estate-planning documents. Estate planners almost universally advise against joint wills, and some states don't even recognize them. Odds are you and your spouse won't die at the same time, and there's probably property that's not jointly held.
That's why separate wills make better sense, even though your will and your spouse's will might end up looking remarkably similar. In particular, separate wills allow for each spouse to address issues such as ex-spouses and children from previous relationships. Ditto for property that was obtained during a previous marriage.
Be very clear about who gets what. Probate laws generally favor the current spouse. Any person can act as a witness to your will, but you should select someone who isn't a beneficiary. Otherwise there's the potential for a conflict of interest. The technical term is a disinterested witness. Some states require two or more witnesses. If a lawyer drafts your will, he or she shouldn't serve as a witness. Not all states require a will to be notarized, but some do. You may also want to have your witnesses sign what's called a self-proving affidavit in the presence of a notary.
This affidavit can speed up the probate process because your witnesses likely won't be called into court by a judge to validate their signatures and the authenticity of the will. You can name your spouse, an adult child, or another trusted friend or relative as your executor. If your affairs are complicated, it might make more sense to name an attorney or someone with legal and financial expertise. You can also name joint executors, such as your spouse or partner and your attorney.
One of the most important things your will can do is empower your executor to pay your bills and deal with debt collectors. Make sure the wording of your will allows for this, and also gives your executor leeway to take care of any related issues that aren't specifically outlined in your will. If you wish to leave certain personal property to certain heirs, indicate as much in your will. In addition, you can create a separate document called a letter of instruction that you should keep with your will.
A letter of instruction, which isn't legally binding in some states, can be written more informally than a will and can go into detail about which items go to whom. You can also include specifics about any number of things that will help your executor settle your estate including account numbers, passwords and even burial instructions.
Another option is to leave everything to one trusted person who knows your wishes for distributing your personal items. This, of course, is risky because you're relying on this person to honor your intentions without fail. Consider carefully. Where should I keep my will?
A probate court usually requires your original will before it can process your estate, so it's important to keep the document safe yet accessible. If you put the will in a bank safe deposit box that only you can get into, your family might need to seek a court order to gain access.
A waterproof and fireproof safe in your house is a good alternative. Your attorney or someone you trust should keep signed copies in case the original is destroyed. Signed copies can be used to establish your intentions.
However, the absence of an original will can complicate matters, and without it there's no guarantee that your estate will be settled as you'd hoped. How often does a will need to be updated? It's possible that your will may never need to be updated — or you may choose to update it regularly. The decision is yours. Remember, the only version of your will that matters is the most current valid one in existence at the time of your death. With that in mind, you may want to revisit your will at times of major life changes.
Think of pivotal moments such as marriage, divorce, the birth of a child, the death of a beneficiary or executor, a significant purchase or inheritance, and so on. Your kids probably won't need guardians named in a will after they're adults, for example, but you might still need to name guardians for disabled dependents.
A rule of thumb: Review your will every two or three years to be safe. Who has the right to contest my will? Contesting a will refers to challenging the legal validity of all or part of the document. A beneficiary who feels slighted by the terms of a will might choose to contest it. Depending on which state you live in, so too might a spouse, ex-spouse or child who believes your stated wishes go against local probate laws. A will can be contested for any number of other reasons: it wasn't properly witnessed; you weren't competent when you signed it; or it's the result of coercion or fraud.
It's usually up to a probate judge to settle the dispute. The key to successfully contesting a will is finding legitimate legal fault with it. A clearly drafted and validly executed will is the best defense. The testimony of the witnesses to the will signing becomes crucial in cases such as this.
Absent a doctor's visit or an adjudication of incapacity within days of the will signing, lack of testamentary capacity is very difficult to prove. People tend to become weaker both physically and mentally as they age, and this can make them more susceptible to the influence of others. The key to undue influence in the context of a will contest is this: Did the alleged influencer exert such extreme pressure and put the testator under such severe duress that it caused him to lose his free will and instead succumb to the will of the influencer?
Mere nagging, threats, and verbal abuse aren't enough to establish undue influence. Proving it typically involves actions such as consulting with the testator's attorney regarding the provisions of the will, paying for the will, and isolating the testator from his family and friends. As with lack of testamentary capacity, undue influence is very difficult to prove. A will procured by fraud is one that the testator is tricked into signing. For example, the testator might be presented with a document and told that it's a deed or a power of attorney.
She therefore signs it, but it turns out that the document is a will. The will is therefore procured by fraud. This tends to go hand-in-hand with testamentary capacity because most people would review the document, at least to some extent, before signing. But fraud is nonetheless a separate ground for a contest. The problem with proving that a will was procured by fraud is that the testator can't be questioned about what he thought he was signing, and this is where state laws come into to play.
The witnesses must be asked what they thought the testator was signing. The will might be declared invalid if the testimony of the witnesses doesn't add up, but more likely because it wasn't signed properly, not necessarily because it was procured by fraud. In the absence of blatant lies and wrongdoing on the part of multiple people, or explicit medical evidence at or near the time the will was signed that the testator was incompetent, proving that a will is invalid can be difficult and very expensive.
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