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How To Write A Will


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How To Write A Will

  1. 1. How to Write a WillNeed to know how to write a will that will clearly reflect your wishesafter your death and will be legally binding? Just follow our very clearguidelines below.Its never too soon! Ensuring your loved ones are taken care of as onlyyou can best determine how, should be high on anybodys list ofpriorities. Unfortunately a large number of people die without a will(intestate), leaving it up to the courts to make decisions on their behalf.Many people do not need a lawyer to draft a basic will. If yourcircumstances are such that you will not leave a very large estate behind,and the beneficiaries are fairly straightforward, it is a simple matter toshow you how to write a will. We have a variety of free last will andtestament forms that can be used as a sample documents to compile yourwill:Free Will Form - For married people with minor childrenLast Will and Testament - For married people with adult childrenFree Last Will and Testament Form - For married people with adult andminor childrenLast Will and Testament Form - For married people without childrenFree Legal Will Form - For a single person without childrenFree Last Will and Testament - For a single person with adult childrenFree Legal Will Forms - Guidelines for Unmarried PartnersFree Living WillIn showing you how to write a will, we will cover all the requirementsbasic to any will. It is best to do your draft and then final will on acomputer where you can amend it from time to time - the printout willthen be witnessed and/or notarized. A handwritten (holographic) will maybe problematic so having a typed will is always advisable.In the past codicils were added to wills to reflect changes - rather thanretyping sometimes lengthy documents. These codicils also had to bewitnessed and/or notarized and could be confusing. It is much easier
  2. 2. nowadays to amend the will electronically and produce a new completedocument.You should produce a new will when any of your circumstances change,such as the birth of a child, divorce, change of property, moving to a newaddress etc.How to write a will:1. Document TitleTypically the headline would be: LAST WILL AND TESTAMENT2. DeclarationYou will state your full name and residential address, with a declarationthat: * You are of legal age to make will and are of sound mind andmemory * This is your last will and testament, revoking all previously madewills and codicils * You are not under duress or undue influence to make this willNote: In giving your personal details, be as complete as possible - addany identification numbers, maiden names etc.3. Name an ExecutorPeople typically name the remaining spouse or main beneficiary of theestate as executor. This makes good sense, since they have knowledge ofthe assets and the interest to see to a speedy wrap-up of the estate andthe probate process. A competent friend may also be nominated, but youshould discuss their willingness to do this duty with them first.You should also name an alternate executor should your first choice notbe available or willing at the time. If you do not specifically name anexecutor in your will, the courts will appoint one and executors fees maybe payable.Get more information on choosing an executor and the duties of anExecutor of a Will.4. Name a Guardian for your Minor ChildrenIf your children are of the age that they require guardianship and there isno remaining natural parent to take care of them, you should name alegal guardian in your will or the court will appoint one. This is probablythe most important clause for parents in determining how to write a will.
  3. 3. Have a serious discussion with your choice of guardian to confirm thathe / she is prepared to take on this duty, before naming him / her in yourwill. If your choice is a stable married couple, state both their names.Unlike temporary guardianship a legal guardian may be responsible foryour children for a long time and must be chosen with care.Guidelines for choosing a guardian, can assist you in naming a legalguardian in your will.5. Details of BeneficiariesName your spouse or life partner, children and other beneficiariesspecifically and without leaving any doubt as to their identity. Namealternate beneficiaries in case of simultaneous death.In most cases a spouse has a right to inherit. Should you disinherit yourspouse and it is contested in court, your will may be overruled. You needto consult with an attorney to get information and advice if you do notwant your spouse to inherit.6. Details of your AssetsAn important part of how to write a will, is to distinguish between estateassets that are already assigned to beneficiaries in the event of yourdeath and those that are not.Assets that are not part of a will, may be any policies where you havealready specified a beneficiary, joint ownership or joint tenancy ofproperty, payable-on-death bank accounts, trusts etc. (If a policy doesnot have a beneficiary named, it becomes part of the estate and canattract executors fees.)If you have assets in a different country, you should make a separate willspecifically for that country and exclude those assets from the will madein your home country. Every country has different inheritance laws andtaxes and lumping all assets together can create serious problems anddelays. You should investigate how to write a will for foreign assets.7. How to Write a Will to cover Specific BequestsUnder the heading "BEQUESTS" you could name persons or organizationswhom you wish to inherit specific property or cash sums. In the clausethereafter, you will state the following: Apart from the items listed in #above, I bequeath the remainder of my assets to ...8. Funeral ArrangementsYou can express your wishes on whether to be cremated, buried or haveyour remains disposed of in any other way, as long as your wishes do notcontravene any laws in your state or country. Your last will and testamentis not the document to specify how you wish to receive treatment in amedical crisis. Please refer to our free living will for more information.
  4. 4. 9. Your SignatureYou have to sign your will in the presence of witnesses, since they will infact be witnessing that you are indeed the signatory of the will. The actualdate and place of the signing must be recorded and it is recommendedthat you sign every page of the will.10. Signatures of WitnessesA minimum of two witnesses in most states and countries (3 in Vermont)are required to witness the signing of your will. Their full names,addresses and signatures should be on the document. You must add adeclaration that they witnessed your signature, that they are legal adultsand of sound mind and that they consider you of sound mind, adult ageand under no duress or undue influence to sign your will. The date andplace of their signing (same as yours) must be recorded.Important Note: The witnesses must not be beneficiaries of your will inany way whatsoever.11. Numbered ParagraphsAn important part of how to write a will or any legal document is tonumber the paragraphs in order. This is a simple way to confirm that thedocument is complete with no missing pages or additional pages inserted.12. NotarizedA final optional part - compulsory in Louisiana, and always advisable - ofhow to write a will is to have your will notarized. The signing process willbe done in the presence of a notary public or commissioner of oath andthe identity of the testator must be proven (photo identification must beprovided). If so duly notarized, the will becomes Self Proving duringprobate. Executor of a WillBeing named an executor or choosing the executor of a will does notimply such a person must have legal or financial expertise.Most often a spouse, close friend or main beneficiary of a will is named asexecutor (or personal representative). That makes good sense becausesuch persons will have a good knowledge of the wishes of the deceased,details of the estate and an interest to wind up the estate without delay.Should they need expert help, the executor of a will can easily getassistance from a lawyer, paralegal or accountant at a negotiable fee andcourt officials are more than willing to explain procedures or issuerelevant forms.Many banks or financial institutions will draw up a will for their clients withthemselves as executors. Unfortunately the personal relationship between
  5. 5. banker and client has been replaced by electronic banking to a largeextent, so it is quite possible that a complete stranger - albeit acompetent individual - will oversee the will. An executors fee willdefinitely be payable, whereas a beneficiary as executor of a will mostlywaive any fees due.Before naming an executor and alternate - refer to How to Write a Will -you should confirm with them that they are willing and that they meet therequirements of your state or country: i.e. not a minor or convicted felonand a resident of your country. Some states also have restriction on out-of-state executors.Duties of the Executor of a WillIn simple terms, it is the responsibility of the executor of a will - afterprobate has been granted - to handle all payments due by the estate,such as funeral expenses, debts and taxes and thereafter to distribute theremainder of the assets to the beneficiaries as specified in the will.The first step is to make a complete list of the assets of the deceased.The second step is to apply to the court for a grant of probate. Thismainly entails the submission of proof of death, proving the will is validand filing a number of forms which can be obtained from the court.Once probate has been granted, the executor must firstly pay funeralexpenses and administration fees, an allowance to the surviving spouseand any children as permitted in law and then debts or any taxes owed bythe deceased.The executor must then publish a notice (generally in two newspapers oras required by country or state law) of intended distribution of thebalance of the state. Anybody with a claim can submit their particularswithin a specified period (generally one month). Thereafter the remainderof the estate can be distributed according to the will.The executor may have to sell assets in order to raise cash for the abovementioned payments. If the executor is not the sole beneficiary of thewill, a bank account should be opened in the name of the estate andaccounting of all expenses or debts and income from sales must beprovided.
  6. 6. Probate & WillMaking a will is the most important step and probate is just one part ofthe bigger picture which need not be a big concern for most people.For most people it is not necessary to make elaborate plans to avoid it. Infact, if the value of the estate falls within the exemption as allowed byyour country or state, you may not need to go through the process at allor at most the procedure will be very simple.So, What is Probate?Quite simply - It is the legal process where the court will:* Determine that the will is valid* Determine that all the assets of the deceased are listed and valued.(The net value is calculated after deducting outstanding monies owed).* Grant permission to the executor to pay debts and taxes* Allow the remainder of the assets to be distributed according to the willIt is the responsibility of the executor, as named in the will, to overseethe probate process.Although the whole process can take anything from a couple of months toa year, it does not mean it is complicated or difficult. It mainly involvesthe filing of the required forms with the court and may not require anycourt appearances at all.How to make the Probate process Faster and Easier.1. Make a will! Every person of major age who has children or hasaccumulated some assets should have a will. Refer to How to Write a Willto guide you through the process.2. Name an executor.3. Name a guardian for your minor children.If a person dies without a will (intestate), the laws of the land willdetermine how the assets must be distributed and it may not be the wayyou would have chosen to have it done.If no executor has been named, relatives or beneficiaries can apply afterwhich the judge will make an appointment. This can add to delaysespecially if there is disagreement amongst applicants.The same problems and delays can arise if you do not name a guardianfor any minor children, which can have serious repercussions.
  7. 7. How to Avoid ProbateAny assets that are legally assigned (on their specific documents) to abeneficiary or joint owner, are not part of your will and therefore do nothave to go through probate. However, they must still be listed to calculateyour net worth for the purpose of taxes.Examples:Policies: Retirement funds or accounts, or life insurance policies makeprovision for a beneficiary to be named (subject to laws on which thebroker must advise you.Bank Accounts: A beneficiary can be named in a Payable-on-Death bankaccount on the legal form provided by the bank. Joint accounts will mostlybecome the property of the survivor.Joint Ownership: When registering property it is a simple matter to listmore than one owner on the title at no extra cost. The primary home ofmost couples are normally registered this way.Securities: Ownership of stocks, bonds, shares etc. can either be in jointtenancy form or a beneficiary can be named.Living Trust: A living trust is a legal entity that holds the property soregistered. Property registered in a trust will not be part of your will (thetrust document will name the beneficiary) and so will not go throughprobate. Setting up a living trust is best done by a professional who canadvise you on the best way to structure it.Note: Any beneficiaries named on policies, securities, vehicle registrationetc. have no rights to such assets until after your death. During yourlifetime it remains your property to do with as you wish, whether to sell itor to change the name of the beneficiary.The information on this site is not intended as a substitute for estateplanning. It is an overview of ways for you to explore to keep assets outof probate. Most people, especially those in the younger age groupwithout extensive assets, need not concern themselves with ways toavoid probate. Older people who have accumulated a lot of assets shouldseek professional help with estate planning.
  8. 8. Estate AssetsWho will inherit your estate assets? That may be an easy question toanswer on the face of it.How will your funeral expenses and debts be paid? How do you want todivide a house amongst three children.If the executor of your will is not the main beneficiary, property may haveto be sold to pay executors fees.Have a look at the information listed below, and How to Write a Will whichcan perhaps help you streamline the provisions in your will.In calculating the net worth of your estate assets, the executor mustinclude the following:* Market value of all real estate, vehicles, collectibles, jewelry andpersonal property less any amounts still owed on them;* Investments, stock market investments, bank accounts and policies inwhatever form;* Business interests;* Outstanding salaries, share options, bonus, leave pay etc. due.The information on this page is not intended as advice on estate planning,but takes a look at common problems faced when distributing estateassets.Cash Disbursements: What if you specify cash amounts to go toorganizations or beneficiaries, but your assets consist mainly of realestate. In this case the property must be sold which can take time andthe market may be at a low. Perhaps bequeathing the real estate itself - ifpossible - will make it easier.Shared Inheritance: You leave one house to two children. There is adispute amongst them because one wants to keep it in the family, or livein it whilst the other wants to sell it. Perhaps you should leave specificinstructions for the house to be sold at market value with the oldest childhaving first option to buy it.Collectibles: As an avid stamp collector youve built up a valuablecollection, but none of your beneficiaries display an interest in the hobby.You can help your executor by documenting the catalogue and realizationvalue since you have best knowledge in this field. This can save time andmoney during probate.Specific Instructions: You can instruct the executor to sell a specificitem first e.g. a boat (rather than a second flat) to realize cash for funeralexpenses and debts.
  9. 9. Business Interests: If you are not the sole proprietor of a business orhave minor shareholdings in a company, you need to review yourshareholders agreements to ensure the disposal of these estate assets arein accordance with the agreements.Documentation: Having taken the proactive step to make a will, youshould take the time to organize records of policies, deeds of sale,agreements, receipts to calculate capital gains tax etc. Last Will and Testament TemplateOur free last will and testament form can assist you in compiling adocument or to structure a brief for your attorney.The free legal will form supplied on this page may be suitable formarried people with adult children. Or refer to our page onHow to Write a Will for links to other free legal will forms which maysuit your requirements better.Note: We list a variety of clauses on the various last will and testamentsamples listed, which you may want to incorporate in your document.Before compiling your free last will testament form, have a look at theguidelines on How to Write a Will where different aspects of wills such asprobate and choosing an executor are covered. Our Free Legal Formsprovide an easy reference for all our pages that can assist you with aliving will, power of attorney and more. LAST WILL AND TESTAMENT of ____________________________________ (Full Legal Names) ____________________________________ (Identification / Social Security Number/s) ____________________________________ ____________________________________ (Address)
  10. 10. 1. DeclarationI hereby declare that this is my last will and testament and that I herebyrevoke, cancel and annul all wills and codicils previously made by meeither jointly or severally. I declare that I am of legal age to make thiswill and of sound mind and that this last will and testament expresses mywishes without undue influence or duress.2. Family DetailsI am married to _____________________________ hereinafter referredto as my spouse.I have the following children:Name: ______________________ Date of Birth _________Name: ______________________ Date of Birth _________Name: ______________________ Date of Birth _________3. Appointment of Executors3.1. I hereby nominate, constitute and appoint_________________________ as Executor or if this Executor is unableor unwilling to serve then I appoint _______________________ asalternate Executor.3.2. I hereby give and grant the Executor all powers and authority asare required or allowed in law, and especially that of assumption.3.3. I hereby direct that my Executors shall not be required to furnishsecurity and shall serve without any bond.3.4. Pending the distribution of my estate my Executors shall haveauthority to carry on any business, venture or partnership in which I mayhave any interest at the time of my death.3.5. My Executors shall have full and absolute power in his/herdiscretion to insure, repair, improve or to sell all or any assets of myestate, whether by public auction or private sale and shall be entitled tolet any property in my estate on such terms and conditions as will be inthe best interest of my beneficiaries.3.6. My Executors shall have authority to borrow money for anypurpose connected with the liquidation and administration of my estateand to that end may encumber any of the assets of my estate.3.7. My Executors shall have authority to engage the services ofattorneys, accountants and other advisors as he/she may deem necessaryto assist with the execution of this last will and testament and to payreasonable compensation for their services from my estate.
  11. 11. 4. BeneficiaryI bequeath the whole of my estate, property and effects, whethermovable or immovable, wheresoever situated and of whatsoever natureto my spouse ________________________.5. Alternate Beneficiaries 5.1. Should my spouse not survive me by thirty (30) days I directthat the whole of my estate, property and effects, whether movable orimmovable, wheresoever situated and of whatsoever nature be dividedamongst my children named in 2. above in equal shares.5.2. I direct that the inheritance devolving upon any of my childrenunder my last will and testament as well as the proceeds, thereinvestment of such proceeds and the income thereon shall be free fromthe legal effects of any present or future marriage of any of my children,whether in or out of community of property including any accrual systemand with or without the presence of any pre-marital agreement.5.3. If any of my children are proved to be indebted to me by means ofa legal instrument, then his / her share of my estate shall be reduced bythe amount of such debt.5.4. Should any of my children not survive me and my spouse by 30(thirty) days I direct that the whole of my estate, property and effects,whether movable or immovable, wheresoever situated and of whatsoevernature be divided in equal shares between my remaining survivingchildren.6. Special RequestsI direct that on my death my remains shall be cremated and all cremationexpenses shall be paid out of my estate.ORI direct that on my death my remains shall be buried at_______________________ and all funeral expenses shall be paid out ofmy estate.7. General7.1. Words signifying one gender shall include the others and wordssignifying the singular shall include the plural and vice versa whereappropriate.7.2. Should any provision of this will be judged by an appropriate courtof law as invalid it shall not affect any of the remaining provisionswhatsoever.
  12. 12. IN WITNESS WHEREOF I hereby set my hand on this_________________ day of _________________20_____ at_______________________________________ in the presence of theundersigned witnesses.SIGNED: _______________________________ WITNESSESAs witnesses we declare that we are of sound mind and of legal age towitness a will and that to the best of our knowledge____________________ is of legal age to make a will, appears to be ofsound mind and signed this will willingly and free of undue influence orduress. We declare that he / she signed this will in our presence as wesigned as witnesses in the presence of each other, all being present at thesame time. Under penalty of perjury we declare these statements to betrue and correct on this ________________ day of _________________20 __ at ________________________________.Witness 1.Name: ______________________Address: _____________________________________________Signature: ________________________Witness 2.Name: ______________________Address: _____________________________________________Signature: ________________________