Recently, news broke that music legend Aretha Franklin —one of the most influential and widely loved artists of her generation — passed away without any sort of estate planning in place. Not only did she die without a trust to hold her assets, she did not have a will in place either.
If you've ever had a conversation about end of life wishes or estate planning, then you probably know that every person should have a will if they own any property at all and care about what happens to it when they die. Unfortunately, simply creating a will is not enough; the will must be legally sound in order for a court to uphold it.
Sometimes, when reading a deceased person's will to determine the distribution of his or her estate, more than one will is present. If the different iterations of the will contain drastically varying terms, this can create significant conflicts in the estate distribution process. This is especially true if one version of the will includes certain family members while another version excludes them.
When a person creates a will, it is very important to establish his or her testamentary capacity for the will to withstand potential legal challenges. Testamentary capacity is a person's legal ability to create a valid will. Some individuals simply do not possess that capacity. For instance, in most cases, a legal minor under the age of 18 cannot legally create his or her own will.
Wills are important documents, and every legal adult should have one. However, wills do not have magical properties, and cannot generally supersede other areas of the law. As you consider your own will or possibly review it for accuracy, be sure to pay special attention to things that you should not include to avoid legal complications later on.
When a testator, or will creator, chooses to make a will, he or she must generally sign and date a physical copy of the will in the presence of not one but two adult witnesses. However, even if the individuals who serve as witnesses are legally adults, they must meet some other requirements. If the individuals who serve as witnesses to a will fail to meet the requirements to do so, this may call the validity of the will into question and complicate the execution of the will when the time comes.
It is always good to have some form of will over no will at all, but a will that is not properly created may be just about as much trouble to resolve as having no will. At the very least, an improperly created will may leave itself necessarily vulnerable to legal challenges, which may result in a protracted legal battle that only serves to drain the resources of an estate and potentially ruin the interpersonal relationships of the family or community members involved in the conflict.
At many points in your life, you may need to review and amend your will to reflect significant life events, changes in relevant laws or changes in your wishes for your estate. It is usually wise to review your will every three to five years to ensure that your will remains valid and up-to-date, especially considering how often shifting legislation may affect the terms of the document.
As part of creating an effective estate plan and protecting your end-of-life wishes, it is often important to consider appointing someone to carry durable financial power of attorney for you. The person you choose to carry this authority must understand the importance of this position and have the faculties to make sober judgments and dependably represent your interests.
Many people do not realize they may have numerous options when it comes to creating a will, depending on their financial and personal circumstances. One type of will that is commonly overlooked is a joint will, usually created for a married couple. Joint wills are used less frequently now than in previous years, because many of the advantages of a joint will are available elsewhere, often with additional benefits.