For an individual or couple whose estate is not going to be subject to estate taxes, the creation of a simple will generally addresses most, if not all, of their need…
The person creating a Will is known as the “testator.” As most people understand, the purpose of a Will is to provide written instructions as to the division and distribution of assets following death. The Will also names people to settle the Testator’s affairs upon his death and to serve as either trustees or guardians for his children or loved ones after death.
At the time that the Will is created, the Testator must 1) have the proper capacity (ability to understand his decisions), 2) have the intent to create a Will, 3)Â sign and date the Will in the presence of two witnesses, and 4) never subsequently revoke the Will. If each of these elements is satisfied, then the Will is a valid document to control the disposition of the Testator’s estate.
Under a Will, the Testator can lay out a variety of methods for the division of his estate. For instance, he can leave gifts of certain dollar amounts to various individuals or institutions, or he can divide his estate into percentages or shares.
A well-drafted Will should be type-written, signed by the Testator in the presence of two witnesses, and it should also include a Self-Proving Affidavit signed by the Testator, his two witnesses, and a notary. The Self-Proving Affidavit is an affidavit attached to the Will wherein the Testator and his witnesses swear to the fact that the Testator signed the Will in the presence of the witnesses and that he intended it to be his Will and had the required capacity to create a Will. The affidavit also confirms that each of the witnesses were over the age of 14 at the time they signed the Will and that they saw each other sign the Will.
Although a Simple Will typically does not include any provisions targeted to eliminate estate taxes, it typically will include provisions related to guardians for minor children and also trusts for either minor children or incapacitated adults.
Guardians and Trusts for Children….
Invariably, all parents of minor children share the concern of who will care for their children in the event they die before the children are adults. In a Will, you can include a provision that designates the person(s) you want to care for your children in the event of your untimely death. Likewise, you can designate someone to manage any money that you leave for your children. The Trust is created in your Will, but it does not become effective until you die. However, upon that death, the Trust is funded with the assets that you designated for your children to receive. Through this Trust option, you can designate that the Trust continue until a certain age of your children or for their lifetimes. When the Trust terminates, your children will receive the assets of the Trust outright. However, prior to the termination date, the Trustee will have the ability to make distributions for your children’s health, support, education, and maintenance. This provides a mechanism for a responsible person to be able to make decisions for your children in the event you are not alive to do so.
William handles small estate wills, durable power of attorney, medical power of attorney, directive to physician, living wills, declaration of guardianship for minor children, Â guardianships, and small probate matters.