A basic will, also called a “simple will” is one of the four broad categories of last will and testaments that people can choose to construct. A last will and testament is the key document used to dictate the division of an individual’s estate.
The specific requirements of a valid will are another subject that varies depending on the state it is being written or used in. If an individual writes a will and then moves, the will will need to be updated to the new state’s standards in order to avoid potential issues regarding validity.
All wills do have some common features. To begin, the person writing, dictating, or signing off on the will, known as the testator, must have capacity to do so. This means that the testator must be a legal adult (usually 18), they must be willing property that they have the right to give away, and they must be determined to be of sound mind. Sound mind in this instance simply means that the testator understands what they are giving away, that it is being permanently given, and to whom each item is going.
Another requirement for all wills, simple or otherwise, is the executor. The executor is appointed by the testator and is responsible for the division of the estate according to the wishes of the testator as expressed in the will.
Wills are an uncomfortable topic to consider but a vital one. People who die without a will are known as “intestate” and their property and assets will be divided by a state-appointed administrator who will break up the estate according to state law. Having a will prevents someone from being labeled as intestate and preserves their wishes after death.
A basic will is all many people will need. The relatively straightforward document will allow the testator to decide who will receive what assets after their passing. Additionally, if the testator has minor children at the time of writing, they can also appoint preferred guardians for the person and property of the child respectively.
A guardian of the person is the individual who the testator believes should physically care for the child after their passing. A guardian of the property will be responsible for holding any property left for the minor child by the testator.
While the testator can name anyone to be the guardian of the person or the guardian of the property, the court must approve this transfer of parental rights. While it is likely that the court will award guardianship, especially if both parents are deceased, the testator should describe in detail the reasoning for guardianship in order to make the best possible case for the court’s approval.
A basic will is not just a few listings on a sheet of paper. There are a number of things that a basic will must do in order to be considered valid including:
In addition to these basic requirements, each state may have its own requirements dictating factors such as the required age of the testator, the form of signature, the number of witnesses. Additionally, state law may dictate the admissibility of a handwritten will, also called a holographic will, and whether or not a will must be notarized.
If you want to create a basic will that is recognized as legally valid, you will need the help of a trusts & estates attorney. While it is possible to create a will without an attorney present, the best way to ensure that your wishes will be respected after your passing is to have it reviewed by an experienced trusts & estates attorney.
A trusts & estates attorney can help you craft a will with simple, clear, and unambiguous clauses in order to ensure that your will cannot be contested by either the state or any aggrieved would-be beneficiaries.
