What is a Will?

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Answered by: Brandon, An Expert in the Wills and Estate Planning - General Category
None of us like to have to face our mortality, yet as we age and our families grow it becomes increasingly imperative that we not only come to grips with it, but also plan for it. As we plan for the inevitable, an important question that frequently arises is: What is a will?

Throughout our lives, many of us collect property and belongings. In the simplest terms, a will is a legal instrument that allows a person to provide direction and instruction on how they want their collective assets, or estate, to be handled following their death. For those who have minor children under their care, a will is a critical document because it not only provides for the distribution of property, but it also is used to name a legal guardian for minor children. What is a will? Clearly a will is something that every responsible adult ought to include on their checklist of important things, being important as (if not more so) than their finances. Why? Because, when an individual passes away without having executed a will, those that survive them (children, spouse, and other loved ones) are frequently left behind having to face a sometime complicated and costly legal process.

When a person dies without leaving a valid, they die "intestate," which means that the state court system must become involved, in a proceeding called probate. When someone dies intestate, a probate court will follow state laws to determine how the estate of a deceased person will be divided among surviving relatives. For those who die intestate and leave behind minor children, likewise the court system may also have to decide custody. Frequently, when an individual executes a will before their death they are able to save their families from the complexities and costs associated with one’s passing away, including having to include the court system. What is a will? A will is one of the best ways in which a person can ensure a smooth transition for their loved one’s following death.

Although requirements for wills vary by state, generally the following are the basic requirements for the execution of a valid will: (1) the person executing the will, known as the “testator,” must be of sound mind and at least 18 years of age; (2) the appointment of a personal representative, commonly referred to as an “executor” to carry out the testator’s wishes; (3) a minimum of at least one provision describing the disposition of property and, when applicable, the appointment of a guardian for any surviving minor children; (4) the will must be signed by the testator; and (5) the signature of the testator must be witnessed by at least two competent persons who are at least 18 years old, who also must sign the will attesting to what they witnessed.

A lawyer is not required in the preparation of a will; in fact, many people create their will by using ready-made forms or do-it-yourself software. However, it is always advisable to seek the counsel and assistance of an attorney licensed in one’s state who specializes in wills and estate planning, especially when complex planning issues arise.

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