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Have you ever heard of a Last Will and Testament? Most people can likely recall a scene from a movie or a television series where a parent passes away, and the children or loved ones gather to hear the reading of their Will. Much to their surprise, they find out the parent left everything to an unexpected beneficiary, or divvied out their estate in a way that triggered outrage and contention—it wouldn’t be good television without drama, after all.
In truth, assuming you don’t wish to disinherit a child without their knowledge, a Will is a fantastic tool to help alleviate stress and contention between family members after you pass away. Rather than leaving the responsibility of deciding “who gets what” to your family members during a time of mourning, a Will allows you to state exactly how you would like for your estate to get divided, so that they don’t have to. While most people will likely have heard of a Will, the details of how to make one—and perhaps more importantly, how to ensure that it’s legally valid and will hold up in court—is often far more of a grey area. We sat down with our estate planning attorney, Triston Dallas, to talk through what steps are required to create a legally valid Last Will and Testament.
So, what are the basic requirements to start the process?
“It needs to be in writing, the person must have the legal capacity to make a Will, and it must be executed properly under the state rules,” says Dallas. “Really, [proper execution] just means that the individual who's Will it is needs to sign the Will, and it needs to be witnessed by at least two other individuals. Those are the basics of what makes your Will valid and ready for presentation to court for probate in the event of your passing.”
You mentioned legal capacity—what does that entail?
“Simply, legal capacity just means that you're 18 or older, and you're not incapacitated mentally, or potentially physically, in some way that would cause [the court] to question your ability to understand the terms of what is being written in the document,” says Dallas. “So [this might be the case] if you have some type of mental illness, or if you're hospitalized in some way. Obviously if you're unconscious there's no way that you would know anything that's in the document. But also something like inebriation—whether it be alcohol or some other type of drug—could potentially call the capacity of the individual’s ability to create the Will into question.”
Does a Will have to include certain terms or clauses to be valid?
“Your Will doesn't have to have any specific type of terms other than [it needs to be] clear as to whose Will it is, and that they're creating this Will with the legal capacity that we talked about previously. Other than that, for the most part, there isn't anything specific that needs to be in the Will,” says Dallas.
“Now, there are some typical and regular clauses that you're going to want to include. Things like nominating your personal representative or executor. You're going to make some declaration in terms of if you're married, if you have children, that type of thing. And then you can make specific gifts by saying, ‘Bob gets X and Susan gets X and john gets X--you can make those types of designations. Then, if you want to be pretty simple, you can make a blatant residue gifting through the Will and just say, 'Everything that I own after expenses and creditors are paid is going to go to X, Y & Z.' So you do have some freedom there.”
If you would like to start the process of creating a Last Will and Testament today, Triston is available to walk you through the process so that you can have peace of mind knowing your assets are accounted for, and your family is set up for success, long after your pass away. To set up a consultation with Triston, call our office at (503) 227-0200 to get connected.
