• What is a Will?

A Will is an instrument by which a person makes a disposition or gift of his or her property. The gifts do not take effect until the time of the testator’ s death. To be a valid Will, the Will must meet the requirements and formalities of state law.

• What is a Testator?

The person who makes a Will is called the Testator, if a man, or the Testatrix, if a woman.

• What is an Executor ?

The Executor is the person you name to carry out the directions in your Will after your death. After your death, the Executor must be appointed by the Court before he or she can act.

In your Will, you may designate the person you wish for the Court to appoint as Executor. You may wish to name one or two successor Executors, to act in the event your first choice does not or cannot serve.

• Who should draft my will?

Only an attorney can legally draft a will for a person, unless a person drafts his own will. Personally drafted wills are often incomplete, and therefore invalid under state law. An invalid will is worthless.

Kits for writing a will are normally not state-specific. If your will fails to follow state law, it will be invalid.

• What are the requirements for a will?

The specific requirements depend on state law. Commonly, the will must be in writing, signed by the person whose will it is (the "testator") and witnessed by (usually) two persons. The exact number depends on state law.

The testator normally must have attained the age of majority, and must be of "sound mind" at the time the will is executed. A married minor is usually capable of executing a will.

The witnesses normally MUST be "uninterested," meaning they're not beneficiaries of the will. Witnesses also must be competent persons.

A will normally doesn't need to be notarized, but a document called a "self-proving affidavit" might be created to provide further legal strength to the will.

"Holographic" (handwritten) wills are still recognized in many states. Such a will must be in the handwriting of the testator and signed by the testator. Witnesses aren't normally required for a holographic will. State law might impose other conditions on a holographic will.

• What are the executor or personal representative's duties and obligations?

The representative is charged with following state law in wrapping-up the decedent's affairs. This includes:

Giving the proper notices to the proper parties
Collecting all the decedent's property
Receiving claims against the estate
Paying just claims and disputing others
Distributing the estate property according to the will or state law
Along the way there may be other necessary actions, like selling estate property to cover debts or allow for proper distribution.

• What if I want to cancel or change my Will after it is signed ?

Do not write on your will or mark through any words. Even small changes or markings could void the entire will. If you wish to change your will, we can help you implement the updates without invalidating your will. You also may revoke your Will. Like the creation of a Will, the revocation must strictly comply with state law. If you wish to cancel or change your Will, you should be as diligent in seeking legal advice as you were when you created your Will.

• Who will take care of my pets after I die?

In your Will, you can name the person (and one or more alternates) you would want to have ownership and custody of your pets after you die. If you wish, you can direct your executor to set aside a sum of money to provide for life-long care of any pets that you own at the time of your death.

Before you sign your will, be sure to discuss your plan with the intended owners to make sure they agree with your wishes. If you do not have a will, your pets pass under the laws of intestacy as personal property.

• Is there a way for me to bear the cost of a party or celebration for my friends and family after I die?

Generally, yes. Your will can include a directive to your executor to expend a reasonable sum from your estate for this purpose. You would want to include a clause to give your executor sole discretion to provide for the expenditure. Language should be included to make sure the cost is deemed a necessary expense incident to the administration of your estate.

Make sure your named executor knows of your wishes, as often a will is not read until after the memorial service or burial.

• I recently divorced. My Will leaves everything to my former spouse. Do I need to change my Will?

Yes, but you have protection. If a person divorces after making a will, all provisions in the will in favor of the former spouse are null and void, unless the Will expressly states otherwise. However, now that your former spouse is not a beneficiary, you should review your Will to determine who will receive your property under your will.

There are at least five family changes where updating your Will is advisable:

Birth or adoption of a child or grandchild.
Marriage.
Divorce (either your own or a family member's).
Death or disability of a beneficiary under your will.
Death or disability of your Executor.
Is joint tenancy a substitute for a will?

A joint tenancy with right of survivorship is a method of owning property with another person. At the death of one owner, the other owner becomes the full owner of the property. The property isn't part of the decedent's estate, and doesn't go into probate.

There are tax implications and simple ownership issues for a joint tenancy.

A joint tenancy is not the equivalent of a will. A will can do a number of other things. A joint tenancy creates a situation where the other joint tenant will get the whole property at the decedent's death. But if you give your brother Bob an interest in a joint tenancy on your home, Bob could sell his interest or his creditors could go after his interest.

• Why must an estate go though court?

So that the decedent's affairs can be legally concluded. The court oversees the probate. If there is real property, someone will need legal authority to transfer the property to the heirs. If the estate is producing income, taxes will have to be paid. The creditors are to be paid from the estate property.

Many states have provisions for an "informal probate" which greatly reduces the requirements of interaction with the court, but doesn't eliminate the court entirely. Most every estate will have a piece of property that passes by title or deed, like a car or real property, and normally only someone with legal authority can legally transfer such property.

• Can I dispose of my property in any way I wish?

Yes, for the most part. But if you indicated that all your property should be collected and burned, the law might not give effect to that part of your will.

You won't be able to avoid protections given to others by act of law, either. This can include your spouse's rights against the estate, community property protections, and special protections for children.

• When should I make a will?

A person should make a will right now because no one knows what tomorrow holds. A person should review his estate plan occasionally, especially after certain events, such as marriage, divorce and winning the lottery.