ESTATE PLAN | DECEMBER 2023
Creating A Will
If you are of sound mind, or legally competent, and over 18, you can make a binding will. However, you must follow certain form requirements to have your will declared valid. An attorney in your state will have the most knowledge of the specific laws and statutes in your state. Contact member services to be paired with an attorney.
In most instances, people making wills type them. Once a will is typed, it must be signed, in the presence of witnesses and sometimes in the presence of a Notary Public. Note that the witnesses must witness you signing the will and the Notary must see you signing the will, if it is required. You cannot sign the will and later ask the witnesses or Notary to sign the will attesting to your signature.
The reason is simple. If there is ever a question raised by someone that you may have been incompetent, or acting under some duress from others when you signed your will, these people will be able to be called to court and testify about the circumstances surrounding your signing.
Additionally, your will can be handwritten, but each state has its own requirements concerning handwritten wills. Also, combinations of typed and handwritten wills may cause serious validity problems for courts when it is time to introduce the will to the court for probating. The obvious reason, of course, is that there is no guarantee to the court that the typed comments on an otherwise handwritten will were there at the time it was made.
You might say, well, just have a witness come in and testify. Remember, it may be 20 years later, and the witness may have lost all connection with the person making the will. They simply may not be able to remember. More importantly, the witness may not even be allowed to testify about the actual contents of the will, since the real purpose for a witness is to witness the signing of the will, not to discuss what the will said.
The simple rule of preventive law is if you take time to prepare a will now and update it regularly, you will never have these problems.
Also, carefully consider who your executor will be as named in your will. You can name any person who is competent and an adult to serve as your executor. Naturally, it should be someone you trust. But you must keep this in mind:
- The executor(s) will be working for you [if you have made a careful choice]
- They will not be acting at your direction, since you will not be around
- Your executor(s) will be acting at the direction of a judge who thinks he/she knows what you want based on the provisions in your will
Knowing this is critical for several reasons. First, it immediately should rule out any "private deals" or "private wishes" which you relay to your executor. For example, assume that 10 days before you die, you tell your executor that you have put $10,000 under your workbench in the garage of your house, and that you wish this to be given, without the knowledge of any other person, to your third child. Since everything an executor does will be watched by the court and the executor will be certifying his/her actions "under penalty of perjury," there is no way this executor can fulfill your wishes without having a serious discussion with a criminal lawyer. Thus, you should know that this type of wish may cause serious problems for the executor and ultimately, may end up having him/her removed as your executor and a person who is not your favorite may replace your original executor.
Second, you must be sure the executor has the temperament and patience to deal with the detail of the court process. Judges require meticulous accountings of all assets, bills, debts and other items related to your estate. It is wise to consider a person who would have this disposition, and the time, to serve as your executor.
Third, you must be sure the person you choose is able to attend the court process. For example, if you lived and died in Alabama, and your executor lives, at the time of your death, in Hawaii, even if he/she is your most trusted person, they will be forced to spend many hundreds of dollars in airline and hotel fees, just to attend all of the court proceedings. Also, much of the "marshaling" work required to be presented by the court, must be actually performed by the executor. It would be ridiculous to think a person living in Hawaii, could perform all of the steps necessary to administer the probate in Alabama. Careful thinking about these types of factors should govern your choice of executor(s).
As a final form requirement, be sure when you make your will to understand which state law will govern your will at your death. You should know that if you made a will 20 years ago in Florida and you now live in Oregon and you have not prepared a new will, there is a chance that the old will may not be permitted to be recognized in Oregon, assuming you die there, since it may not have complied with all the requirements of Oregon law. Making a new will in Oregon would easily solve this problem.
If you have any questions about creating your will, contact member services. We’ll pair you with an attorney that will help you with your specific need.