A will is a legal document in which an individual states how he would like his estate to be handled after his death. A will is a critical document when determining how to divide assets and follow through with a deceased person's postmortem wishes. However, creating a will is not always as straightforward as it may seem. Simply writing down a will may not be suitable to create a legally binding document.
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Each state has varying laws on how to prepare a legally binding will. For instance, Delaware requires that a testator, or the subject of the will, be at least 18 years old and that the will be affirmed correct and signed by two or more mentally sound witnesses, although the will in most cases need not be signed in the presence of witnesses. Louisiana, on the other hand, requires only that a testator is of an age to comprehend the consequences of the decisions he makes in his will, and requires that the will is signed in the presence of a notary and two mentally sound witnesses. To carry the force of law, a will must be created in accordance with state law; if it is not, a variety of consequences could occur, including being deemed an intestate, the legal name for an individual who dies without a will.
There are several types of wills, including a holographic, nuncupative and joint wills. A holographic will is completely handwritten by the testator. Not all states recognize holographic wills, and may require that wills be typed and printed. A nuncupative will is also known as an oral will, or a will that is not in writing. A nuncupative will is only recognized in a few states, and is usually recognized only in extremely unusual circumstances. A joint will is a will between two people, often married couples, that jointly own property and assets. A common source of confusion is the distinction between wills and living wills. A living will is another kind of legal document completely; it states the medical treatment an individual would like to receive should he be too incapacitated to speak or otherwise competently express his wishes.
Someone who dies without a valid will is classified as an intestate. An intestate's assets are distributed according to the laws of the state in which he resided. Generally, a judge appoints an administrator, an individual who oversees probate, the process of distributing or transferring property to the heirs of the deceased. An administrator is often an uninterested third party with no relations to the heirs.
Retaining an attorney to create a will is not legally necessary, as a will that meets the state's legal requirements has the force of law with or without attorney input. However, an attorney is often a reliable asset when creating a will, as attorneys are often knowledgeable on the laws of the state and may be a helpful resource in helping an individual express her final wishes in a way that causes the least amount of stress for heirs during probate.