Creating a will is one of the many things that people tend to put off until it is absolutely necessary. However, having an executed will in place, more than a crude acknowledgment of one’s own mortality, is perhaps the most important step that one can take to offer what measure of security can be had via administrative means in this world.
If you have not yet encountered it, the website rocketlawyer.com is a great resource for free legal forms. Two forms on the site that are of particular interest when planning a will may be:
The Social Media Will form speaks to the distribution of “digital assets” which is especially interesting in this day and age.
The following is an outline of a Will Workshop that we conducted in Portland, Oregon back in 2006. We used the fictional case of “R.U. Intestate” (Lawyers in the US should quickly grasp the humor). You can download the word document here:
It may prove a useful guide, however, we are not attorneys, nor do we pretend to understand your individual circumstances. As such, this is in no way to be taken as personal legal advice.
Tuesday, September 26, 2006
- R.U. Intestate’s Family Tree
- Scenario 1 – With Will
- Scenario 2 – Without Will
- i. Definition of Lineal Descendants – Children, Great Grandchildren, Great-Great Grandchildren, etc.
- i. Over 18
- ii. Or Legally Married
- iii. And of sound mind, etc.
- i. All property is given along with any liens or other encumbrances that the testator/testatrix had.
- ii. Real property (devise)
- Law governed by the state where the property is.
- iii. Personal property (bequest or legacy)
- Governed by the law of the state where the primary residence of the testator or testatrix is. iv. Specific Gifts
- v. General Gifts
- vi. Concept of Ademptio
- vii. Concept of Abatement (first from residual, then pro rata from general gifts if will does not state otherwise).
- i. Lineal Descendants
- Per Stripes vs. Per Capita
- i. Witnesses should not be interested parties (beneficiaries or Attorneys)
- Concept of Undue Influence
- Very difficult to prove, proven from the facts surrounding the making of the Will.
- Concept of Undue Influence
- ii. Should be present for the signature of the testator or testatrix.
- Why have a will?
- A will speaks for you when you no longer are able to
- A will assists your descendents in distributing property according to your wishes.
- You decide who will care for your children
- You decide who will tend to wrapping up your affairs
- You decide who will receive your property
- How to make a will:
- A will can be written at any time and needs only to be presented to the courts for probate after the person’s death. No requirement to register it.
- With the help of a kit similar to the example.
- Always get the help of an attorney who understands your specific situation.
- Elements of a Will
- Importance of a writing
- Statement of Testamentary Capacity
- Revocation of previous wills
- Statement of family relationships
- Direction to settle all accounts
- Distribution of Property
- Residual Estate
- Appointment of Guardian for children under 18
- Appointment of Personal Representative
- Signature and Date
- Other Topics
- Joint Wills
- Living Wills
- Holographic Wills (napkins)
- Noncupative or Deathbed wills.