The Right Way to Execute a Last Will and Testament
When we talk about estate planning in Huntsville, AL, a last will and testament is always the number one priority. After all, wills are the documents that discern how your assets are distributed and instructions for your funeral or burial ceremony.
More importantly, wills are a way in which you can communicate to your executor and heirs the very instructions they’ll need to follow for asset distribution. Not to mention, where to find the codes, passwords, and other important information they’ll need to navigate your estate with ease.
As simple as writing a will may sound, we can assure you that a lot of careful thought and consideration needs to go into your last wishes. A lot of mistakes can be made, rendering it an invalid document and leaving your executor without the necessary autonomy to do their job.
Let’s talk about what goes into executing a last will and testament the right way — starting with ensuring your will is valid, to begin with.
What Constitutes as a Valid Will?
A last will and testament is a legally binding document that allows you to choose how your assets will be distributed upon your death. This includes who will serve as guardians to minor children or pets and who will settle your estate when the time comes.
When we talk about executing a will, we’re talking about the conditions behind signing it and making it legal. There are three very specific conditions that make a will valid and are intended to ensure its authenticity in reflecting the deceased’s wishes:
You Must Be of Legal Age and Sound Mind
This is the most basic condition, but it’s intended to ensure that the individual writing the will is competent enough to decide how they want their assets distributed upon their death and that they are not being manipulated in their wishes by someone else.
Therefore, the testator — the writer of the will — must be at least 18 years of age and of sound mind. Being of “sound mind” simply means that the individual is 100% aware of the document they’re creating and can understand exactly what it is they’re signing off on.
The Will Must Be in Writing and Signed
Officially, the testator must write the will (preferably typed up, not handwritten). More importantly, the will must be signed by the testator along with at least two other witnesses — and as soon as possible.
In fact, it’s best if the testator and witnesses all simultaneously sign the will to demonstrate the will's intentions.
It should be noted that the witnesses must also be of legal age. Therefore, they also cannot be the beneficiaries of your estate. Essentially, they should be two legal adults who have absolutely nothing to gain from your estate when you die.
It Must Be Notarized
This is incredibly important — an official public notary must notarize the will at the time of its execution and witnessing. This means that when the testator and witnesses come together to sign the document, they must do so in front of the notary and then receive the official stamp to make it paid and legal.
What Deems a Will Void and Invalid?
While there are only a few specific conditions for ensuring a will is legally sound, there’s still plenty that can go wrong — especially when you start learning about the different types of wills.
To keep things simple and to the point, here’s an overview of the things that can render your will invalid (and therefore, should be avoided):
Creating a Holographic Will
A holographic will is a handwritten will without any witnesses. The only reason these wills still exist is that some states still accept them as valid. Unfortunately, Alabama is not one of those states, so avoid unwitnessed, handwritten documents at all costs when estate planning in Huntsville, AL.
Not Having the Appropriate Witnesses
If you don’t use the proper witnesses — two legal adults with no interest in your estate who are able to recognize that you’re of sound mind upon the signing — then your will can easily be contested in court and invalidated.
Not destroying previous wills. You may or may not have already written a will. If you have and are planning to create a new one, you’ll need to destroy every copy of the others.
Having Insufficient Testamentary Capacity
A very common reason for contesting a will has to do with the testator’s mental competence. Most states require that the testator meets the standards of a basic competency test, which includes proof of the following:
They have an understanding of what assets they own
They know exactly who their relatives are
What is their relationship with their beneficiaries
What their will says and means
To avoid this becoming an issue, especially if you have a cognitive impairment, it’s best to work with your Huntsville attorney to establish your testamentary capacity.
Not Adhering to State Provisions.
Not following Alabama’s requirements for writing a last will and testament can also cause a will to become invalidated. The requirements are simple, and follow along the lines of:
Making a statement that this is your last will
Writing a clear list for asset distribution
Naming an executor
Using the Document to Commit Fraud or Writing it Under Duress
If the probate court concludes that a will was written fraudulently or under duress, they will invalidate it. This includes a non-family member forcing the testator to leave them an inheritance or a relative getting the testator to sign a will under the guise of it being a general legal document.
Not Working With an Estate Planning Attorney
One of the primary reasons that all of the above mistakes are made is because the individual writing their will did not meet with an estate planning attorney. Only your trusted Huntsville attorney can ensure that you’re creating a last will and testament that’s bulletproof and covers all your bases.
How to Write a Proper Last Will
There’s a little more than simply meeting the above conditions to ensure that your will is effectively executed. You also need to make sure that it’s written properly so that when you pass on, its instructions are clear and concise and followed exactly.
Here are the steps to follow to ensure just that:
Include Personally Identifying Information
If you want to eliminate any doubts as to who wrote the will, you’ll want to include identifying information such as:
Your name
Address
Driver’s license number
Social security number (SSN)
Be Specific About Your Age and Mental Status
To further prove your eligibility for the will, you’ll want to be explicit about your mental state and ability. Therefore, you’ll need to write out that you are of legal age and of sound state of mind during the time of the will’s creation.
Select an Executor
The executor of your will is the person you choose to oversee its actualization when the time comes. Not to be confused with executing the will, your executor is the person who entrusts your will, reads it aloud to your loved ones, and follows its final instructions to settle your estate.
Name a Guardian for Any Minor Children
If you have small children, you’ll need to address them in your will. It’s the only document you can use to appoint a guardian to take them in should you and your spouse die suddenly. A lot goes into choosing a guardian, so you’ll want to take time to carefully consider your options.
Name Your Beneficiaries
A large part of writing out a last will is choosing your beneficiaries. This means choosing who will inherit specific properties and other assets once you pass on. There’s no limit as to how many beneficiaries you can have, but the goal is to distribute your assets fairly and strategically to avoid any family issues during your will’s execution.
Specify Your Funeral Details
Your last will is also where you want to provide detailed instructions for your final arrangements. You’ll also want to include a funeral fund to help cover the costs because the last thing your grieving family needs is to figure out how to pay for your funeral and which is the best way to honor you.
Keep Your Will Safe
Once you and your witnesses have signed before a notary, you want to ensure that your will is safe so it cannot be destroyed and can be located when needed. It’s a good idea to keep an official copy with your Huntsville attorney, and you’ll also want to revisit and revise your estate plan every few years or after significant life changes.
Writing a last will and testament doesn’t have to be as cumbersome as it may seem. We can help you create and execute an effective will as well as an overall estate plan. Contact us today to schedule a consultation with Sara S. Shepard or another experienced Huntsville estate planning attorney.