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Wills: Everyone Needs One

Do you have a will? If so, congratulations! You’re a step ahead of half of all Americans, whose families stand to lose significantly if they die unexpectedly. If not, read on to learn why having a will is so important.

Q. Why should I go to the trouble of writing a will? 
A. A will lets you control what happens to your property. If you have minor children, a will enables you to designate who will care for them after your death. Through a will, you can nominate a legal guardian for your children and name a personal representative to handle the distribution of your estate to your designated beneficiaries.

Q. What happens if I die without a will? 
A. Your property must be distributed, so the probate court in your area will appoint someone as the personal representative of your estate to distribute the property in accordance with state laws. The costs associated with this are more expensive than if you name a personal representative in advance. You also risk having someone apply and being appointed whom you would not have chosen for the job. The costs must be paid out of your estate before any property is distributed.

Q. What is a CD or video will? 
A. A CD or video will records someone reading his/her will and explaining why certain gifts were made (and others not made). The CD or video might also show the execution of the will. If the will is contested, the CD or video provides compelling proof that the person making the will was mentally competent and correctly executed the will. Consult with your attorney before making such a CD or video to find out about your state’s laws on CD or video wills. Generally, CDs or videos are supplements, not substitutes, for a written will.

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Q. What do I have to do to make my will legally valid? 
A. After you’ve drawn up your will, you must take the formal legal step of executing the will. This requires having at least two witnesses who have no potential conflict of interest. As a general rule, the witnesses watch you sign and each witness then signs in the presence of the other. If your will is executed in a lawyer’s office, two other attorneys or support staff might serve as witnesses.

A valid will requires that:

  • You are of legal age, which is 18 in most states
  • You are mentally competent (you know you are executing your will and know the general nature and extent of your property and your descendants or other relatives who would be expected to share in your estate)
  • The will must have a substantive provision that disposes of your property and must indicate your intent to make the document your final word on what happens to your property?
  • The will must be written (with rare exceptions, such as imminent death)
  • You must sign the will unless illness, accident, or illiteracy prevents it, in which case you can designate someone to sign for you in your presence
  • Your signature must be witnessed by at least two adults who understand they are witnessing a will and are competent to testify in court.

If your will doesn’t meet all of these conditions, it might be disallowed by a court and your estate could be distributed according to state law.

Q. Can I leave my property to anyone I wish? 
A. In general, you can choose the people you want your property to go to and leave it to them in whatever proportions you want, but there are some exceptions. For example, a surviving husband or wife may have the right to a fixed share of the estate regardless of the will. Some states limit how much you can leave to a charity if you have a surviving spouse or children, or if you die soon after making the provision.

Q. Can I disinherit my spouse and children? 
A. You usually can’t disinherit your spouse, but in Michigan and every other state except Louisiana, you can disinherit your children. Your intent to disinherit must be stated in writing.

Excerpted from information by the American Bar Association

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