Once anyone has reached the age where they have accrued assets and wish to confer those assets to their descendants, dependents, or simply family and friends, it is time to write a will. Will writing can be a confusing process for some because little is known of how to actually create the legal document required to make your will official. A will is technically a legal document that contains the instructions to distribute your property and assets upon your death. In addition, it provides the names of the people you want to benefit. It also contains the details of all your possessions on the date of your passing.
Every adult should have a will. Without one, an individual is considered to be “intestate”. This allows the government to decide whom your assets and property get distributed to. If you are the adult child of a senior who has not executed a will, it’s important to have them contact a lawyer. A lawyer can draw one up and ensure you know the location and the name of the executor. Your senior has worked hard to accumulate wealth. Even it’s not a fortune, they’ll still want to ensure that everything is still transferred to their loved ones.
What is a Will?
A will is a legal document. It simply describes the way in which a deceased person wishes their savings and assets to be distributed when they die. All wills come under state, not federal, law. Meaning that in order to prepare a will, your senior must follow the dictates of the law in their state. State laws vary when it comes to executing one. For example, in some states, an oral will is valid. While in other states, handwritten ones are accepted without witness signatures. It’s best to confer with a lawyer familiar with your senior’s state laws regarding wills before trying anything on your own.
Once an individual passes away, their assets become part of an estate. An executor must be named beforehand. That person becomes the one whose responsibility it is to ensure the will is carried out as intended. They can ensure that assets are distributed as directed. An executor for a will can also hire someone else to ensure that the assets are correctly distributed.
How to Write a Will
To begin preparing a valid will, you must begin by researching the execution requirements of your state. The following criteria are usually found in every state:
- You must be of age; (you must be 18, or legally emancipated by your parents, or married, or have joined the military)
- One must be of sound mind (in other words, you must demonstrate that you understand the document you are signing
- You must name at least one or more persons or parties who are obtaining your property when you die
- One must sign the will voluntarily and in some states have several adult witnesses
- Most states require the will be handwritten, typed, or printed. Only a minority of states accept an oral will, but only permitting certain extreme circumstances
What Happens if a Senior Dies Intestate?
If your senior passes away before writing a will, that means they have died “intestate”. When someone passes away intestate and leaves property or assets behind, the state intervenes. States law requires that the assets and property go to close family members. In the case of no will, it starts with surviving spouses and children. If there is no surviving spouse or children, the property goes to increasingly distant relatives such as grandkids, parents, siblings and so on. If no close relatives can be located, the property and assets are taken on by the state.
What is a Probate Court?
So what happens when someone dies and their will names you as a beneficiary? Well, the property does not automatically come into your possession. Instead, most states have a process by which beneficiaries must go through a court-supervised process for bestowing the property and assets. This is called probate and it happens in a probate court. The process usually goes as follows. The executor of the will identifies and collects the assets, locates the debts, notifies the beneficiaries, and generally executes the legal process by which a will is carried through. In the case where someone deceased does not have an executor, the state will appoint one.
As your senior ages, difficult decisions about their assets and property, as well as their medical care, need to be made. A living will, which is sometimes referred to as a health care directive, is a written legal statement. It communicates what a person’s health care wishes should be if they become incapacitated or otherwise unable to dictate their own healthcare directives. This is done by designating a Durable Power of Attorney for Health Care (DPOAHC) which names that person as the one responsible for dictating the wishes of the incapacitated person to health care providers.
Writing and executing a will is one of the most important things you can help your senior loved ones with. The process can be daunting. With the right information and prep, you can ensure your loved one’s assets and property are given exactly to the people they wish to give these things to.
Matthew Boyle is the Chief Operating Officer of Landmark Recovery drug and alcohol rehab center. He has been working in the healthcare space for 7 years now with a new emphasis on recovery. He graduated from Duke University in 2011 Summa Cum Laude. Matthew and the team at Landmark create a supportive environment for the elderly.
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