Wills: An Overview
Questions and Answers on Wills from our Attorneys
What is a will?
A will is a legal document by which a person expresses his wishes as to how, and to whom the property belonging to him at death is to be distributed. Not all property is passed by will; modern estate planning allows the use of many other avenues to pass one's property on to the next generation, but a will is still probably the one people are most familiar with.
After a person dies, leaving behind a will, a petition is usually filed in the appropriate court to initiate the process of probating the will. This initial filing includes asking the court to appoint the executor for the estate. To find out more about the probate process in Indiana and how an attorney can assist you in handling such matters, please visit our Probate Administration page.
Living Wills
A Living Will is becoming an increasingly common document requested as part of a person's overall estate planning which deals primarily with a person's end-of-life health care choices and preferences in the event the person becomes incapacitated and unable to speak for himself. A Living Will has form requirements determined by state law, but some states honor a Living Will drawn up in another state.
Simple Wills
A simple will is just a basic assignment of assets to beneficiaries upon the death of the testator, and would not include the formation of a testimentary trust or other more complex provisions that might be included in a will for many varying reasons.
Wills: Frequently Asked Questions
Does a will include all of my property assets?
The definition of property is too broad for a will to cover it. Life insurance, 401k's, pensions and other such properties must be kept through a trust. These properties would then pass to the beneficiaries named at the time of the purchase/acquirement of the insurance policy or 401K.
One can name one's own estate as the beneficiary, however, this is not a recommended route as it can cause major roadblocks such as time delays and increased expense.
Does having a will help reduce my estate taxes?
Having a will alone will not always reduce the massive estate tax. A larger estate planning solution is the correct approach for tax avoidance. This being said, not having a will guarantees a massive tax bill from the Federal Government. Just the act of having a will is the first step in an overall protection portfolio that will keep the federal government from taking a large portion of your estate from your family.
What are the benefits of having an attorney assist in the creation of my will?
While anyone over the age of majority can create a will, there are a large number of difficulties that arise with homemade wills which can cause unnecessary financial costs and hardship to beneficiaries after the time of death.
Requirements For Writing A Will
A will can be drafted for any person who exceeds the age of majority. There are varying laws state by state, but this is the only major requirement.
- There must be a clearly identified maker of a will, known as the "publication" of the will by the testator.
- All previous wills must be revoked.
- The testator must show that he or she has the mental and physical capacity to assign property rights to others and dispose of assets, and is doing so willingly.
- The will must be signed and dated by the testator in the presence of persons who are not beneficiaries.
Terms & Definitions
Age Of Majority: Adulthood as regarded by law, the age during which the legal control of parents over their children ends.
Testator: A person who has the mental and physical capacity to create their own will.