What is a Will? - Overview

A will is a written or oral communication by a person stating how they want their property disposed of at death.

Different Types of Wills:
There are several different types of wills one can use to dispose of his or her estate.

• Self-proving will – A will that has been witnessed and signed with all of the formalities required by state law. This is the most common will.
• Holographic will – A will that is handwritten without the presence of witnesses. Very few states recognize these types of wills, and only in limited, specific circumstances.
• Oral will – This type of will is an unwritten disposition of property, whereby the individual orally communicates his or her wishes. Oral wills are only recognized in a few states and usually only in compelling situations.

Requirements for a Will:
There are several requirements for a will:

• Be of sound mind – This means that you must:
  - Be at least 18 years old or an emancipated minor
  - Know what a will is
  - Know that you are making a will
  - Understand your relationship between yourself and the people who care for you (i.e. immediate family members, including spouse and family).
• Expressly state that this document is your will
• Sign and date the will
• Signed ("attested") by at least two or three witnesses – The number of required witnesses depends on state law. In addition, most states require that the witnesses be unrelated to you.
• Have one substantive provision that
  - Appoints a guardian for any minor children
  - Lists who inherits specific items
  - States what happens to remaining property not specifically mentioned in the will
• Appoint an executor
  - Responsible for supervising the distribution of property
  - Makes sure that all your debts and taxes are paid

What is a Trust?
A trust is a legal property interest held by one person (trustee) for the benefit of another (beneficiary).

Different Types of Trusts
There are several different types of trusts one can create:

• Living trust – A trust that is created while you are alive. A living trust allows the trustee and beneficiary to avoid the probate process.
• Testamentary trust – A trust established through a will. A testamentary trust generally must go through probate.
• Revocable trust – A trust that can be terminated at any time by the grantor for any reason.
• Irrevocable trust – A trust that cannot be changed or terminated for any reason.

Requirements for a Trust
Creating a trust is a relatively simple process. All that you must do is fill out a:

• Valid Declaration of Trust form
• Sign over the required deeds for property such as homes and automobiles that will be included in the trust

Advantages of a Trust

• Property in a living trust does not go through probate
• The trust document is never made public like a will
• You can name alternative beneficiaries to inherit property if a primary beneficiary dies before you do
• Allows others to handle your assets when you are not able to

Do I Need an Attorney to Draft a Will or Trust?
If you choose to create a will or trust, consulting with an attorney experienced in estate planning is always a wise thing to do. The potential tax implications and legal formalities of will and trust drafting make a lawyer's counsel indispensable. A lawyer can explain all your options and help you understand what types of wills or trusts are right for you and your family.