The most common advice for people considering estate planning is that you need a will. Without a will, your state’s laws regarding inheritances will determine who receives your property upon your death. More importantly, a judge who knows nothing about you or your family will decide who will take care of your minor children. So, when you decide that you are ready to start your estate planning, here is what you need to know about creating a will.
The essential requirements for creating a will
In general terms, a will needs to specify who should receive your estate property and who you want to serve as your executor. That is the person who will have the power to carry out the terms of your will. If you have minor children, you should also include the name of the person you want to serve as their guardian, should anything happen to you and there is no surviving parent.
When is creating a basic will sufficient?
There are certain situations where a basic will may be sufficient to meet your needs. For instance, in cases where a client has a limited number of assets, and they are all owned by the client only, a basic will could work if the client intends to leave those assets to his or her closest living relative. However, a simple will is not necessarily a good idea when a client has significant assets that are more complicated in nature and there are various types of beneficiaries.
When creating a will, you must be competent to do so
Although, technically speaking, creating a will may be easy, you must still possess the legal competency or mental capacity to do so. Otherwise, the will may not be considered valid by the court. However, simply because someone has a mental illness or disease, that does not mean they automatically lack the required mental capacity. In fact, if the testator has periods of clarity, he or she could still be considered competent at the time the will is executed, if it occurs during that period of lucidity.
Start creating a will now, before symptoms of incapacity start
So many people suffer from dementia these days, but if they were able to prepare their estate plans before their symptoms started, then they may capable of creating a will. If your loved one has begun exhibiting signs of dementia or some other mental illness that might affect legal capacity, it is not necessarily too late to create a will. You should instead contact an estate planning attorney to discuss whether your loved one meets the criteria for being competent.
Temporary incapacity may not stop you from creating a will
For some people, legal incapacity may only be temporary. If the medical condition that caused the incapacity can be resolved, then that person’s legal capacity can return. Intoxication is an example of a temporary condition that causes legal incapacity, which can be resolved once the person becomes sober. Another very common example of a temporary situation is the incompetency of a minor, which ends when the minor reaches the age of majority. A medical condition such as a coma or a state of unconsciousness could also be temporary, because once the person recovers from that condition, his or her ability to make decisions can also return.
Everyone should consider creating a will, not just the wealthy
One misbelief that many people share is that, if you are young and have only a moderate income, you don’t really need to be concerned about creating a will. This is not the case, however. No matter your age or your financial status, you should have an estate plan of some type. Everyone has an estate when they die, even if it is small.
Your estate includes all of your personal property, your bank accounts, retirement accounts and life insurance policies. It also includes your home and any real estate you might own. So, everyone needs to consider creating an estate plan . If you don’t have a will, then the probate court will decide for you who will receive that property after your death. Most clients would rather make that decision for themselves. Creating a will can be the simple way to take care of those decisions.
Creating a will is important for sentimental possessions
Even those who have no home or vehicle and only a few possessions, should still consider creating a will. There may be some personal possessions that hold sentimental value for you or for others in your family. This would include any family heirlooms, wedding rings, and family photos.
Join us for a FREE workshop! If you have questions regarding wills, or any other estate planning matters, contact Gaughan & Connealy for a consultation either online or by calling us at (913) 262-2000.
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