A will is one of the most important legal documents a person can create, yet most people either have no will or have one that is outdated and no longer reflects their circumstances. The consequences of dying without a valid will (dying intestate) are typically that assets are distributed according to a statutory formula that may bear no resemblance to what the deceased would have wanted, and that family members are left to navigate a more complicated and expensive administration process.

 

Estate planning, done properly, ensures that your assets pass to the people you choose, in the way you choose, with as little administrative burden and tax cost as possible.

 

At greenstein-law.com you will find a legal blog covering wills, inheritance, estate planning, and practical legal guidance for individuals and families planning for the future.

 

Why You Need a Will

 

A will is a legal document that sets out how you want your assets distributed after your death, who should be responsible for administering your estate, and, if you have minor children, who should care for them if both parents die. Without a will, the law determines all of these matters according to rules (intestacy laws) that apply uniformly without regard to your specific wishes or circumstances.

 

Intestate succession laws distribute assets according to defined formulas: typically to a spouse, then to children, then to more distant relatives. These formulas do not account for the specific relationships and circumstances of any individual estate. A long-term partner who was never legally married may receive nothing. Step-children who were practically family are not recognized. A sibling to whom you were particularly close receives the same share as one you were estranged from.

The appointment of guardians for minor children is another reason a will is essential for parents of young children. Without an express appointment in a will, the decision about who will care for your children if you die falls to the court, which may not know your preferences and may not appoint the person you would have chosen.

 

What a Valid Will Requires

The formal requirements for a valid will vary by jurisdiction, but most require that the will be in writing, that the person making the will (the testator) be of legal age and of sound mind at the time of making it, and that the will be signed by the testator in the presence of witnesses who also sign to confirm that they witnessed the signature.

Witnesses to a will typically cannot be beneficiaries under the will, since they are certifying the validity of the document rather than benefiting from it. Using a beneficiary as a witness creates the risk that their gift under the will becomes invalid.

The capacity requirement (that the testator be of sound mind) is one of the most frequently litigated aspects of will validity. A will made by someone with diminished mental capacity, or who was under undue influence from another person, can be challenged after the testator’s death. Obtaining medical evidence of capacity at the time of making a will, and using a solicitor who can assess and document capacity, reduces the risk of a successful challenge.

 

Choosing an Executor

The executor is the person responsible for administering the estate after death: gathering assets, paying debts and taxes, and distributing the remainder to the beneficiaries. It is a significant responsibility that requires time, organization, and the ability to deal with financial and legal matters.

Choosing an executor requires balancing the trustworthiness and availability of a family member or close friend against the professional competence of a solicitor or trust company. Many people appoint two executors jointly: a family member who knows the personal context and a professional who manages the legal and financial complexity.

The executor you appoint should be willing to serve, understand the general scope of what the role involves, and be accessible when needed. It is worth having a direct conversation with any proposed executor before appointing them.

 

Gifts and Legacies

A will can make two types of gifts: specific legacies (identified items or amounts given to specific people) and residuary gifts (the remainder of the estate after all specific legacies, debts, and expenses have been paid). The residuary gift is typically the most significant in financial terms and should be carefully considered.

Conditional gifts (gifts that depend on specified circumstances, such as a beneficiary reaching a certain age before receiving their share) and gifts held in trust (where the asset is managed for the benefit of a beneficiary who is a minor or otherwise unable to manage it directly) require careful drafting to achieve the intended effect.

 

Keeping the Will Current

A will that reflected your circumstances ten years ago may be significantly out of date today. Marriage typically revokes a previous will in most jurisdictions; divorce does not automatically revoke a will but affects the gifts made to a former spouse. The birth of children and grandchildren, the death of named beneficiaries, significant changes in assets (a business created or sold, property purchased or sold), and changes in the chosen executor all are events that should prompt a review of an existing will.

Most legal advisors recommend reviewing a will every three to five years as a matter of routine, and immediately following any significant life event. The cost of updating a will is small relative to the potential cost of a will that does not reflect current wishes.