Have you ever given any thought to drafting a will? Statistics suggest it’s more likely you might not have. Studies show that more than 55 percent of Americans above 45 years of age do not have a will. And why should they? It’s a grim subject, admittedly. Drafting a will means acknowledging the impermanence of life. You’re not just looking at the prospects of your own, inevitable, demise. You’re also imagining, and preparing for, a situation for your family after your death. It’s a bitter pill to swallow, and we understand that.
However, by not making a will, you are not only creating significant difficulties for your family, but you also don’t have an assurance that your valuable assets will ultimately end up in the right hands. By drafting a will, you can choose who the executor or the guardian can be as well as decide which assets which will pass on to certain heirs. If this convinced you of how essential it is to create a will, or you were looking ways to make one already, here are some of the things to consider.
To make a will, you must fulfill two basic criteria. First, you must be at least 18 years of age. The exceptions to this rule are soldiers and sailors who, at the time of drafting the will, are on active duty or stationed at sea respectively. In this case, the minimum age limit can be reduced down to 14. Secondly, you must be ‘of sound mind’ while drafting the will. Now how do we define sound mind? Can people with mental illnesses considered to be of sound mind?
That depends on the kind of mental illness. The rationale behind this requirement is that, while drafting the will, you must be able to understand your actions and consequences of those actions. So some people with mental illnesses are considered to be fit to make a will if they have that ability. Conversely, some people who are not mentally ill may be deemed unfit if they are, say, under the influence of palliative drugs.
You may, in your will, assign one or two people the following roles: executor of the will and guardian for your children. Who are these people and what exactly do these responsibilities entail? An executor, as the name suggests, is the person who executes your will. In other words, he or she is responsible for handling your affairs, particularly financial matters, after your death. While appointing the executor, you must consider that the person must be someone you trust who is particularly adept at handling financial affairs. It may be your spouse or a relative. It may be a banker or a business person. You may also appoint more than one people to be the executors.
A guardian, on the other hand, is someone who is legally responsible for your children before they reach 18 years of age. It goes without saying that the guardian(s) must be fully capable of taking care of the surviving children and making healthy decisions on their behalf. If both parents pass away before the children turn 18, the guardian takes on that responsibility. If you haven’t identified a guardian, the courts would appoint one instead, but it may not be someone you would have wanted. So it is better you do it yourself.
Legally speaking, there’s no such requirement for an attorney to prepare your will. You’re free to do it yourself. Indeed, there are many websites that offer step-by-step guides for drafting wills. But before you go down that route, you must ask yourself: should I really do that? Here’s why you should not. Firstly, unless your possessions are no more than a piggy bank and a bicycle, your financial situation is not simple. You need a lawyer.
Secondly, the laws of inheritance are state-specific. There may be hundreds of tiny details or intricacies about your state’s laws that these websites would overlook, but your lawyer won’t. Thirdly, since an average person may not be aware of these legal requirements, they may make mistakes while drafting or signing the will. For instance, the beneficiaries or executors cannot sign as witnesses. Did you know that? If you did know it and have learned more about drafting wills, then go right ahead. But, if not, then you can avoid these mistakes and subsequent hassles by hiring a capable attorney.
These are some of the frequently asked questions about drafting a will:
A witness, as we have mentioned before, should not be a beneficiary. It’s better to have, what’s known in legal terms, disinterested witnesses. These are people who do not have anything to gain from your will. You should check the requirements of your states regarding the number of witnesses.
The will is a valuable document. You can’t keep it lying around. You cannot also store it in a place where no one can access it. The idea is to choose a place which is secure, yet accessible – a safe in your house maybe? It’s also recommended to place a signed copy with your attorney in case the original is lost or destroyed.
If you wish to leave certain items to specific heirs, you can do so in your will. However, if the list is extensive, you may have to create an additional document known as the letter of instruction. In it you can list the particular assets you would like to give to certain heirs.
A short answer would be: no. Even if you have drafted a will, you may need to update or revise it regularly. Why? State laws regarding inheritance are constantly changing. If there are new laws that impact your will, you need to make modifications accordingly. Certain life events may also prompt changes in the will. The reasons may be marriage or divorce, birth of new children, the death of beneficiaries, executors, or guardians, and so on.