The importance of having a last WILL and TESTAMENT for you and your family.
Having a WILL is having the last word as to how your assets will be distributed. More importantly, a will allows you to choose who is going to take care of your children in case something happen to you and your spouse.
If there's no WILL the guardian will be appointed by the courts and someone less responsible may end up raising your children.
If you don't have a clear WILL and testament, your estate is going to generally be controlled and disposed of by the probate court that has jurisdiction over the estate, deciding who gets what and in what amounts. This process can take years.
Although holographic (handwritten) wills are acceptable in nearly half of the states, these types of wills can be a problem, as a court could throw out a will that is not eligible or is unclear (changes have been made). Or do not follow certain legal requirements, such as having proper witness.
You can always hire an attorney to draft your will. One of the advantages of doing so is that the attorney may help you include things in your will you'd never have thought of on your own.
Also, the laws relating to wills can be very technical and complex.
You need to get legal advice from a licensed counsel and get familiar in regards to the estate laws in your jurisdiction.
This website offers a variety of templates that may be suited for your particular circumstance. You may need to incorporate some of the clauses in your last will document that are provided in these samples.
The EXECUTOR/EXECUTRIX: the person that will gather your assets and liability and arrange your financial affairs (prepare the estate tax return, manage the estate business, get the will accepted by the court and distribute the assets according to the will.) Also don't forget to provide the degree of power you want the executor to have. Whether money will be given directly to the ones you specified or to guardians or others. The executor carries his/hers duties under the supervision of a probate court judge.
The GUARDIAN(s): the person(s) to whom you entrust your children.
The TRUSTEE: the person who administrate any trusts (if you have any.)
The BENEFICIARIES: specify the identity of the people you want to receive your assets.
The ASSETS you want to give to each beneficiary.
The WITNESSES: Any 3 people that are adults (at least 18 years old), mentally competent persons, not related to you by blood, marriage, or adoption and do not stand to inherit anything from the will. The witnesses must be there at the same time to see you sign the will and immediately sign after you.
A WILL THAT IS NOT PROPERLY WITNESSED IS NOT A VALID DOCUMENT.
If there's anyone you wish to DISINHERIT, that person needs to be specifically mentioned. Or he/she can claim you forgot him/her and have the will INVALIDATED.
A CODICIL is an amendment to a will and needs to be signed and witnessed to be valid.
A TESTATOR is the person who writes a will. A female can also be called TESTATRIX.
LAST WILL AND TESTAMENT
I, JOSEPH SMITH, residing at [city and state], being of sound mind, do hereby make, publish and declare this to be my Last Will and Testament and do revoke any and all other Wills and Codicils heretofore made by me.
1.1 - I direct payment of my debts, funeral expenses and expenses for administration of my estate.
2.1 - I give the rest of my estate to my wife, CAROLINE SMITH. If she predeceases me, I give the rest of my estate to all my children, equally, share and share alike.
2.2 - If any beneficiary shall fail to survive me by 45 days, it shall be deemed that such person shall have predeceased me.
2.3 - If neither my wife nor issue survive me, I direct that the rest of my estate be divided into four equal parts. I give one part to my wife's parents, or the survivor; one part to my mother; one part to my wife's sister, ALICE; and one part to my brother, KURT.
3.1 - I appoint my wife Executrix of this will. If she predeceases me, I appoint my friends (a) MARIA BROWN and her husband, LARRY, to said office, and (b) as guardian of the person of each of my children. I direct that no appointee hereunder shall be required to give bond for the faithful performance of the duties of said office.
This Will has been prepared in duplicate, each copy of which has been executed as an original. One of these executed copies is in my possession and the other is deposited for safekeeping with my attorney, _______________________________(Attorney's name and address).
I, _________________ [Your Printed Name], do hereby declare to the undersigned authority that I am 18 years of age or older, of sound mind, and under no constraint or undue influence willingly sign and execute this instrument as my Last Will and Testament in the presence of the following witnesses, who witnessed and subscribed this will at my request, and in my presence at _______ [City and State] on this ______ day of ______________, 20__.
___________________________ [signature ]
[Your Typed Name]
We, the witnesses, under penalties of perjury, sign our names to this instrument that [Your Printed Name] declared to be his/her last will and testament, and then willingly signed this instrument consisting of _____ pages in our presence on this _____ day of __________, 20__, at _______________________________________[City and State]. We hereby further certify that to the best of our knowledge the Testator is over the age of 18; that the he/she signed this document freely and voluntarily, not under any duress or coercion and appeared to us to be of sound mind and memory.
______________________________ [Signature of Witness #1]
______________________________ [Printed name of Witness #1]
[Address of Witness #1]
______________________________ [Signature of Witness #2]
______________________________ [Printed name of Witness #2]
[Address of Witness #2]
______________________________ [Signature of Witness #3]
______________________________ [Printed name of Witness #3]
[Address of Witness #3]
Subscribed, sworn to, and acknowledged before me by ______________________________, the testator/testatrix, and subscribed and sworn to before me by ______________________________ and ______________________________, witnesses, this _____ day of _______________, 20___.
Notary Public [Notary Seal]