Although most Americans are aware that they need a will, about 70% of us don't have one. The only way to insure that, after your death, your money and property to go to the people you want is to have a will. People procrastinate the making of a will for many reasons. It's important to know that writing a will does not have to be complicated or expensive. And once it's done, you can rest a little easier, knowing that your wishes will be fulfilled after your passing.
What are the requirements of a Will?
Requirements:
1) Age
To make a will, you must either be:
- 18 years of age or older, or If younger than 18, be legally married, in the military, or otherwise considered "emancipated."
2) Mental State
You must be of "sound mind" to make a valid will. It's not a rigorous requirement. The standard interpretations require that you:
- know that you're making a will and what a will is
- understand the relationship between yourself and those persons who you would normally provide for, such as a spouse or children
- understand what you own
- be able to decide how to distribute your property
In reality, a person must be pretty far gone before a court will rule that he/she lacked the capacity to make a valid will. For example, forgetfulness or even the inability to recognize friends doesn't, by itself, establish incapacity. Also, it's important to remember that in the vast majority of cases, there's no need to prove mental state to a court. It's presumed that the will writer was of sound mind, and the issue will never rise unless someone challenges this in a court proceeding--which is very rare.
A will can also be declared invalid if a court determines that it was procured by "fraud" or "undue influence." This usually involve some evil-doer manipulating a person of unsound mind to leave all, or most, of his property to the manipulator. Will contests based on these grounds are also quite rare.
What is a living will?
A living will, also known as a Directive to Physicians or Advance Healthcare Directive, sets out your wishes about what extended medical treatment should be withheld or provided if you become unable to communicate those wishes. The directive creates a contract with the attending doctor. Once the doctor receives a properly signed and witnessed directive, he or she is under the duty either to honor its instructions or to make sure the patient is transferred to the care of another doctor who will.
Many people mistakenly believe that healthcare directives are used only to instruct doctors to withhold life prolonging treatments. In fact, some people want to reinforce that they would like to receive all medical treatment that is available -- and a healthcare directive is the proper place to say so.
What is a Probate?
When a person dies, someone must step in to wind up the deceased person's affairs.
This "someone" is called an Executor or Personal Representative. Bills must be paid, property must be accounted for and items must be passed on to the people chosen by the deceased person.
Probate usually works like this: After your death, the person you named in your will as executor -- or if you die without a will, a personal representative appointed by a judge -- files papers in the local probate court. The executor proves the validity of your will and presents the court with lists of your property, your debts, and who is to inherit what you've left. Then, relatives and creditors are officially notified of your death.
What are Trusts?
Trusts are legal arrangement by which one person holds legal title to property for another person. The person-who can be an institution such as a bank or law firm--holding the title to property is the "trustee." The person for whom the trust is held is the "beneficiary." The trustee's instructions are set out in the trust document. There can be certain advantages to establishing a trust. The best-known is avoiding probate. If a trust ends when the donor dies, any property passes immediately to the beneficiary without going through probate.
Other uses of trusts are: to provide tax advantages, to protect property, and to assist the person in qualifying for Medicaid.
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