Mortality. The issue of mortality is a very difficult matter for most individuals. This is especially true when people have to consider mortality when choosing to have a Last Will and Testament prepared. Clearly, it is important to do so, but the fact that people have to imagine a world that exists without them is one of the lingering reasons why many people do not properly execute a Will to safeguard their assets, wrap up their affairs, and most importantly, unequivocally decide who is to be the guardian of their minor children.
People who pass away without a Last Will and Testament are deemed to have died "intestate" which means that they have died without making it known who is to inherit what from the estate. At which point, the laws of the State or statutes will guide how your property is to be allocated accordingly. Certainly, most people rather have their own wishes set forth in the Will, as opposed to a "one-size-fits-all" approach when an estate is disposed of by statute.
Whether someone dies with a Will (testate) or without a Will (intestate), the estate must be submitted for Probate which is a legal process of transferring the property of a deceased person to the rightful heirs and addressing any liabilities of the estate. Probate is done in the Office of the Surrogate that is present in every county.
When seeking to have a Will prepared, it is important that the person making the Will, called the “testator,” understands that there are certain prerequisites and items that have to be included to make that Last Will and Testament legally effective. Here are the steps to consider:
- First, the testator must be at least 18 years of age. The testator also must have testamentary capacity meaning that it has to be indicated that the person making the Will is of “sound mind” and is “writing the will of his or her own accord.”
- Second, the document must be called “Last Will and Testament,” and the testator must appoint an executor (male) or executrix (female). Essentially, an executor/executrix is the person who will be appointed to manage all of the affairs of the estate in the testator's place. This person needs to be someone who is extremely trustworthy, and although there are laws against self-dealing, you would never want to appoint an executor/executrix who you doubt their honesty and integrity.
- Third, if your Will sets up a trust upon your death, perhaps for minor children who cannot manage the inherited assets, you should also name the trustee. Many people appoint the same person as the executor and the trustee, but certainly there is no requirement to do so.
- Lastly, if you have minor children, you will want to appoint a guardian for your children. A guardian also could be somebody that is different than the person appointed to manage the estate's financial affairs and ultimately it needs to be someone that the testator knows will always safeguard the best interest of the children. It is a good idea to appoint a “back-up” executor, trustee, and/or guardian, in case the person that is appointed either disclaims wanting to serve or passes away before the testator does.
Spouses should sign different Wills and are discouraged from entering into a “joint Will”. However, spouses often time have “sweetheart” Wills which are identical and mirror images of each other. That way, the spouses know that the depending on who passes away first, the wishes of each spouse are identical.
A Last Will and Testament must typically be signed and witnessed by two (2) individuals who are not beneficiaries and who actually saw the testator sign the Will. This is an absolute requirement. If there is a likelihood that there may be a Will contest by an anticipated beneficiary or child of the testator, especially when the testator may be elderly, it is often recommended that the Will signing be video taped to prove that the testator fully understood the contents of the Will, and was truly of sound mind when executing same.
If you decide that it is finally time to do your Will or you would like to redo your Will, please contact Abdou Law Offices, LLC at (732) 540-8840.
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