In order to ensure that your assets are distributed according to your wishes after your death, it is necessary to prepare a document known as a will. A will can also be used to designate a guardian for your minor children. Without a will, the distribution of your assets is determined by a probate court.
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Determining If You Need a Will
It is recommended that you prepare a will if you undergo certain changes to your financial or family status. Qualifying events would include marriage, divorce, having or adopting a child. In addition, buying or acquiring property or receiving an inheritance would be reasons to prepare a will. When preparing a will, keep in mind that you can change an existing will by adding codicils. One common use of a codicil is to nullify the right's of a prior spouse in a divorce, notes The Law.com. However, in cases of extensive changes, it may be better to draft a brand new will in order to avoid confusion in the probate process.
It is not mandatory to have a will drawn up by an attorney. You can do it yourself by purchasing a will kit or using an online document preparation service. However, most states will require some general requirements to be met in order for a will to be considered valid. These include being at least 18 years of age and of sound mind. The will must be in writing, and in states that permit the use of handwritten wills, the will must be in the handwriting of the testator. There are usually at least two witnesses to the signing of a will -- and the witnesses should not be named as beneficiaries in the will.
The Probate Process
Probate is the legal process whereby the deceased's assets are distributed per the instructions in a will. If the deceased did not name an executor, one is appointed by the court. Going through probate proceedings ensures that income and property taxes are paid. In instances where an individual did not leave a will, the distribution of assets is determined in probate court. In probate court, the deceased's creditors are paid off prior to any assets being distributed. Assets are typically awarded to a spouse and children. If the deceased was unmarried and had no children, assets are distributed to surviving parents, siblings, grandparents and children of grandparents, according to The Law.com.
A will may be contested if a potential heir believes that the assets of the deceased are not being fairly distributed. In order to contest a will, the potential heir must file documents with the court and most states have a statute of limitations with respect to when a will can be contested. For a will to be contested, conditions must be met such as proving that the will is fraudulent, demonstrating that the testator was unduly influenced by an outside party or under duress at the time the will was executed, or showing that the testator did not execute his will because he was mentally incapacitated.