If you have a child under the age of 18, you need a will that names a legal guardian or guardians in the event of your and the other parent’s death. If you don’t name a legal guardian before you die, the court will choose who will care for your children, with no input from you and don’t assume that the court will automatically grant custody to aunts, uncles, or even grandparents of the child. Also note that legally speaking, the surviving parent has the right to custody if the other dies, so if this is something you don’t want, you should plan for this ahead of time as well.
Moreover, when drawing up your will, be sure that you and the other parent are on the same page regarding the legal guardian so you can include the same name in both of your wills to avoid later problems. Also, think about naming an alternate guardian should your original choice be incapable of taking on the responsibility for any reason. While the choice of a child’s legal guardian is highly personal, there are some considerations that everyone should think about, and they include the following:
• Should you consider co-guardians?
If your preference is to have your children raised in a two-person home, be sure to name each member of the couple as a co-guardian. For example, if you would like your sister and brother-in-law to jointly raise your children, include them both as co-guardians.
• How old is your chosen guardian?
Many people immediately think of their own parents for guardians of their children, but consider the age and general health of your chosen guardian and whether he or she will be able to handle the physical demands of raising children. If your children are nearing the age of majority, this may not be as much of a concern, but if you have younger children, it could be a very important consideration.
• Where is your chosen guardian located?
Are they in the same town as you? A few towns over? Another state? How far away are other family members and important people in your children’s lives? Will your children have to deal with moving to a new location in addition to the loss of their parent(s)?
• Is your chosen guardian up to the task financially?
As a parent, you know that raising children is expensive, so while ideally, you will have prepared financially for your children ahead of time with estate planning, be sure to consider your chosen guardian’s financial resources as well.
• Does your chosen guardian share your personal and religious values?
You probably would prefer a guardian who shares your basic values and goals as a parent so that your children will be raised similarly to the way you would have raised them. If religious doctrine or alternately, not teaching religious doctrine is particularly important to you, you should consider this when choosing a guardian. Think also about whether they can handle the responsibility of raising your child as well as what kind of parent they would be—are they patient, kind, and mature? Do they already get along well with your children?
• Make sure you have a heart-to-heart with the chosen guardian.
Before you make this decision and include a named guardian in your will, sit down and talk with your choice. First and foremost, you want to make sure that he or she will agree to becoming the guardian of your child should anything happen to you, but it is also useful to discuss all the considerations discussed above so you know for certain the answers to those questions. Part of your job as a parent now is to decide who you would want to care for your children in the event of your death. Imagine if writing a last will and testament were a pre-requisite to graduating from high school. The graduate walks across the stage, hands the completed will to the principal, and gets the diploma in return. It might sound strange because most 18 year olds have little in terms of assets but it’s a good idea for all adults to draft a last will and testament. Graduation from college is another good milestone to use as a reminder to create an estate plan. If you haven’t created a will by the time you marry or are living with a partner in a committed relationship then it’s fair to say you are overdue.
Requirements for Making a Will
Anyone of legal age (18 years old in most states) and sound mind can make a Will. If you have property that you wish to distribute at the time of your death, you should have a Will. When you make out your Will, you’ll need to designate beneficiaries and an executor. The beneficiaries are the people or organizations who receive your property. The executor is the one you designate to see that your wishes are carried out.
Legal Age
In most states, a minor becomes an adult at the age of 18. Once he or she reaches that legal age, certain rights and privileges are granted. That holds true for most states when it comes to making a Will. Forty-seven states currently require the Will maker to be at least 18 years of age. A number of states make provisions for those younger than 18 years of age to write a Will if they are married, economically independent, or a member of the armed forces.
Mental Competence
“Being of sound mind and body” is a phrase made famous by movies and television versions of Will making. And it’s true, mental competence is an essential factor in making sure your Will is legally binding. Being mentally competent means that you know you are executing a Will, and are familiar with your property as well as your family and descendants. Witnesses are required to sign the Will and one of their functions is to validate your mental well-being. If is it anticipated that dissatisfied heirs might contest the Will based on mental incompetency, extra steps should be taken at the time of the signing of the Will, such as a doctor’s assessment.
Distribution of Property
The main purpose of a Will is to make provisions for the distribution of your property after your death. In general, you can designate anyone you wish to be your beneficiaries and you can distribute your assets in any fashion, but there are a few exceptions. Many states have provisions that provide the surviving spouse with the ability to elect to take a defined portion of the estate regardless of the provisions in the Will. As we have seen many times in literature and drama, unusual or excessive provisions can be attached to an inheritance. For example, someone includes a Will provision that the first child to bear a child gets the largest share of the estate. While this makes for good storylines in fiction, most probate courts in the real world frown on such provisions. A dissatisfied beneficiary may decide to contest the Will in court.
Leaving Property to Spouses
Most of the time, spouses are the major beneficiary in a Will. Even so, there are laws in all states that protect the surviving spouse from being disinherited. Some allow the spouse to take an elective share of the estate, usually one-half or one-third, regardless of the provisions in the Will. One method to disinherit a spouse may be through the use of a premarital agreement, but the courts are apt to closely scrutinize such agreements to make sure that the agreement was signed in good faith and with full disclosure of assets. It’s possible to put limitations on the property that you leave to a spouse through the establishment of trusts for the benefit of your spouse that come into existence after you die. You should consider the following factors in deciding what kind of trust is best for your circumstances:
• the possibility that your spouse’s needs may increase in the future
• the manner of living to which your spouse is accustomed
• the ability of your spouse to provide for his or her own needs
• the ability of your spouse to manage the trust assets
• the possibility that your spouse may remarry and the affect the marriage may have on your children or other beneficiaries.
Providing for Minor Children
Many times a spouse is given the entire estate with the expectation that he or she will provide for minor children. That expectation is not always sound however, especially when the surviving spouse is not the parent of the children, or if the spouse is not available to care for the children at the time of your death.
One of the most common practices under these circumstances is the establishment in the Will of a minor children’s trust. The trust provides financial support for the children until they become adults, at which time the remaining assets of the trust are distributed to them. It is important to carefully select the trustee, who will manage the trust and make the distributions to your children. The trustee will work closely with the person you’ve named as guardian to raise your children. In many cases, the trustee and the guardian are the same person.
Written Requirements
Most Wills are documented with the written word. These are usually formatted with typewriters or word processors. If properly signed and witnessed according to the requirements of the state where signed, these are legally valid in all states. However, there are other types of Wills.
Holographic Wills
Some states recognize Holographic Wills. These are handwritten, un-witnessed Wills, signed only by the Will maker.
Oral and Form Wills
A few states still recognize Oral Wills, under certain conditions. Others offer a standard Will form, where you just fill in the blanks.
Video Wills
A relatively new type of Will is the Video Will, where the Will maker usually reads his or her Will out loud before a video camera. Videotaping a Will can help avoid a Will contest by showing that the Will maker was competent and following proper signing formalities. Keep in mind that many states will not recognize a video Wills as a substitute for a written Will; the Will maker should do both.
Signing Requirements
In order to make your Will valid, you must sign the document in the presence of at least two witnesses. They, in turn, must sign it as well, in your presence and in the presence of each other. At the time of the signing, most state requires that you be mentally competent and at least 18 years of age.
Witnesses
Witnesses are very important to the validity of a Will. The signature of at least two witnesses is required in order to affirm that you were mentally competent and under no duress at the time you executed the Will. Each witness must understand that they are witnessing a signing of a Will and they must be competent to testify in court. Witnesses should sign in the presence of each other. In many states, a witness cannot be a beneficiary of the estate. States have adopted these laws to prevent any conflict of interest from those who may be in line for gifts, or who may benefit from your death. Some states will allow for a beneficiary to act as a witness, but in doing so, that witness may lose some or all of the property that he or she would have to inherit.
How to Sign Your Will
Everyone puts off making a will. So once you’ve actually done the heavy lifting decided who you want to inherit your property, who you want to serve as your executor, who to name as guardian for your children, and gotten all of these decisions written down in a will, feel free to give yourself a hearty pat on the back. There’s just one thing: You’re not done yet. A will, unlike almost any other legal document, must be signed (executed) in a special little ceremony before it is valid. Because unlike other legal documents, if there’s ever a dispute about what it means, the person who wrote it won’t be there to explain what he or she intended. So over the centuries, a ritual has grown up around the signing of a will. It entails a series of safeguards to make sure that the document is genuine, that it says what you want it to say, and that you knew what you were doing. It’s not hard to sign a will correctly, in a way that will ensure that it will be accepted as valid later. But unfortunately, it’s not uncommon for will-writers or their lawyers to make mistakes in the will-signing process, potentially invalidating a will. Here is how to make sure your will is a valid, binding legal document.
• Proofread the Will: Before you do anything else, sit down and read the document slowly and carefully. Do these before you gather with witnesses to actually sign the will you can’t pay careful attention if you are distracted or feel hurried. Make sure that you understand everything the document says and that it reflects your wishes. Check the spelling of everyone’s name. If you left property to people in percentages or fractions, add them up to make sure they equal 100. Make sure that all the pages are numbered correctly and that there aren’t any big blank spaces. If anything needs to be changed, make your corrections and print out a new, clean copy of the document. Never cross out or add any language with a pen, or cover anything with correction fluid. The document should be perfect.
• Arrange for Witnesses: Every will signing ceremony needs two witnesses, who will watch you sign your will and then sign it themselves. If you’re signing the will at an attorney’s office, the attorney will probably bring in witnesses employees of the law firm or someone who works next door. If you’re recruiting your own witnesses, be aware that not just anyone will do. For starters, witnesses must be adults, at least 18 years old. It’s also best to pick witnesses who are less than 18 years old.
• Don’t inherit anything under the will: This is a requirement in some states, but have disinterested witnesses are always a good idea; so that they don’t have any incentive to say that you were of sound mind if you weren’t.
• Know you: Part of a witness’s job is to state, in writing, that the will-maker appeared to have “testamentary capacity” that is, was able to make rational decisions about leaving his or her property. Someone who knows you is in a better position to evaluate that, especially if someone might raise questions about your mental state.
• Will be available to testify if necessary: When your will is eventually submitted to the probate court, witnesses may need to give a written statement, or testify in person, that they saw you sign and that you appeared competent.
• Arrange for a Notary Public: A will doesn’t have to be notarized to be valid. But in most states, you’ll want to make what’s called a “self-proving affidavit” part of your will and the affidavit must be notarized, which means that you’ll need a notary public at your will signing ceremony. If you sign your will in a lawyer’s office, the lawyer will provide a notary public. If you’re arranging this party on your own, you can probably find a notary public at a bank, real estate office, or package-mailing service. It’s worth it to go to the extra trouble of getting a notarized self-proving affidavit, because it will simplify the process of getting your will admitted to probate after your death. When your witnesses sign the affidavit, they swear that they watched you sign the will and that you appeared to have the mental capacity necessary to make a valid will. After your death, the witnesses won’t have to submit further statements or come to court to testify; the affidavit will do the job.
• Gather Everyone and Explain What’s Going On: Everyone you, witnesses, notary should be in the same room for the signing ceremony. If you’re not, it might invalidate the will, depending on how strict your state’s law is. If everyone isn’t already acquainted, they should be introduced to each other.
• Have the Witnesses Initial and Sign the Will: In your presence, each witness should initial every page, just as you did (and also in blue ink). They also sign the “attestation” at the end of the document, which states that they saw you sign the document and that you appeared to do so of your own free will, and put down their addresses.
• Sign the Self-Proving Affidavit: Before your witnesses sign the self-proving affidavit, the notary may put them under oath; the notary should know what procedure is required by state law. The notary will then ask the witnesses to sign the self-proving affidavit. You can also ask the notary to ask the witnesses to say, out loud, that they understand and agree to each of the points in the affidavit.
• Store the Will Safely: Now that you’ve gone through the whole will signing ceremony and have a legally binding document, don’t lose it! Put it in a safe place, and make sure your executor knows where to find it when the time comes.
Estate Planning Lawyer Free Consultation
When you need legal help with estate planning, a last will and testament, a revocable living trust or administration of a trust or a probate case, please call Ascent Law LLC (801) 676-5506 for your Free Consultation. We want to help you.
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West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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