Having an up-to-date will is important at every stage of your life. Your will provides you with the opportunity to designate the beneficiaries of your property, nominate guardians for your minor children, appoint an executor to administer your estate, and otherwise express your final wishes. A will is even more important if you wish to leave property to a domestic partner, friend, or charity.
A will is a legal expression of an individual’s wishes about the disposition of his or her property after death. Anyone 18 years or older and of sound mind may make a will. A testator is considered to be of sound mind if he or she knows “the natural objects of his bounty” (the person or persons who would naturally be expected to receive his or her property at death), understands the nature and extent of his or her property, knows the manner in which he wishes to dispose of his or her estate, and understands the effect of the desired manner of disposition. In order for the will to be valid, the person must have testamentary intent, that is, the present intent at the time of execution that the instrument operate as a will at the testator’s death.
A “simple” will generally leaves the entire estate to a spouse or to children equally. It may include a testamentary trust for minor children. A simple will may not be appropriate for everyone. For example, if someone wishes to leave the estate to multiple beneficiaries in differing percentages or dollar amounts, if assets are valuable enough that estate taxes will apply, or if the testator wishes to establish a special needs trust for a child with a disability, a more complex will and/or estate plan may be necessary.
The most common type of will is an attested will – in writing, signed by the testator, and witnessed by at least two competent individuals. The testator must sign or acknowledge his or or her signature in the witnesses’ presence, and the witnesses must sign in the presence of the testator. Very commonly, attested wills are made self-proved by having the testator and witnesses execute an acknowledgment before an officer authorized to administer oaths at the time of or subsequent to the will execution. A self-proved will can be admitted to probate on the basis of affidavit, and therefore avoids the necessity of having the witnesses testify before the clerk of superior court that the will is genuine and was duly executed.
Less common types of wills are holographic (handwritten by its author) and nuncupative (oral) wills. Both of these types of wills are subject to limitations, strict requirements, and scrutiny, and both will require the live testimony of multiple witnesses before the clerk of superior court. If you have questions about either holographic or nuncupative wills, you should seek the advice of an attorney.
Contact our firm today if you are considering a simple will or have questions related to wills and estates.