The Basics of a Last Will and Testament
A Last Will and Testament is a legal document by which a person, the testator (male) or testatrix (female), names one or more persons to manage his or her estate and provides for the transfer of property at death. A Will may also include trusts that may benefit minor or adult children, third parties, or eliminate or reduce estate taxes. The primary purpose of a Will is to transfer the assets of the decedent to named beneficiaries per the decedent’s wishes. Additionally, parents with minor children can designate a guardian for their minor children in the event that the parents die prior to a child’s 18th birthday. Here are some basic requirements for a Will to be valid in Washington:
How many witnesses are required?
In Washington, two (2) witnesses are required for a valid Will.
Must my last Will be notarized?
Washington law, like the law of most other states, provides for what is known as a “self-proving” Will - in other words, a Will that the Probate Court will accept at the testator’s death without having the witnesses come to Court and testify as to the truth of their attestation. In order for a Will to be “self-proving,” the witnesses must sign either a Declaration (also called a Certification) under Penalty of Perjury stating that the statements that they would have otherwise made in an Attestation Clause are true, or the witnesses can sign a notarized Affidavit. Only the State of Louisiana requires that a Will be notarized. In all other states, notarization is not required but it is recommended. If the Will is ruled invalid in probate, then inheritance will occur under the laws of intestacy as if a Will were never executed.
Any person over the age of 18 in Washington who is of sound mind can sign a Will. Additional requirements may vary, depending on the jurisdiction, but generally include the following requirements:
The testator or testatrix must identify himself or herself as the maker of the will, and that the document he or she is signing is his or her Last Will and Testament; this is commonly called “publication” of the Will, and is typically satisfied by the words “Last Will and Testament” on the face of the document.
It is helpful if the testator or testatrix declares that he or she revokes all previous Wills and codicils. Otherwise, a subsequent Will may only revoke earlier Wills and codicils only to the extent to which they are inconsistent. However, if a subsequent Will is completely inconsistent with an earlier one, the earlier Will is considered completely revoked by implication.
The testator or testatrix must demonstrate that he or she has the capacity to dispose of his or her property, and does so freely and willingly.
The testator must sign and date the Will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries or family). There may be extra witnesses (called “supernumerary” witnesses) if there is a question as to an interested-party conflict. In a growing number of states, an interested party is only an improper witness as to the clauses that benefit him or her.
The testator’s signature must be placed at the end of the Will. If this is not observed, any text following the signature will be ignored, or the entire Will may be invalidated if what comes after the signature is so material that ignoring it would defeat the testator’s intentions.
Appointing an Executor in your Will
As stated above, one important aspect of a Will is to name the executor or the person that will oversee wrapping up the affairs of the estate. In Washington, we typically refer to executors as Personal Representatives. Wrapping up the affairs includes gathering the assets and paying final expenses.
Bequeathing Property to Beneficiaries in your Will
The other important aspect of any proper Will is to specify how property will be disbursed to the beneficiaries. If there is no Will, the property will be disbursed according to state law. In Washington there is an intestate (one who dies without a will) succession statute that dictates who is entitled to receive the assets of the estate.
Who Needs a Will?
The short answer is . . . everybody needs a Will! We often hear people say that since they do not have many assets, they do not need a Will. Others say that their kids know how the assets are to be divided and therefore, they do not need a Will.
Whether you have just a few assets or a very complicated estate with a large amount of assets, you should have a Will. Not all Wills need to be complicated or even written by an attorney. To be safe however, we recommend that you consult an attorney in the preparation of your Will. Doing so can prevent many problems and make sure that your Will is written according to the laws of your state.
You may think that everyone understands how your assets are to be divided and indeed they may. However, many families’ relationships have been ruined over relatively minor misunderstandings or because terms of the Will have been changed. If you do not have a valid Will, your wishes may not be followed, either due to misunderstanding or state law.
People Can Surprise You
There are many common situations that are prescriptions for trouble if a decedent does not have a Will. There is simply no way for the courts or your family to enforce your intended plan if it is not contained in a Will. Families can be forever torn apart, jockeying for position over the distribution of even small amounts of property.
Many people have witnessed firsthand the difficulties faced by the surviving families of friends and associates who passed without a Will, and even acknowledge the pitfalls of not having their own Will. Their common refrain is that their kids will respect the parents’ wishes and never stoop to fighting over the estate. Even if these folks are right, what about the kids’ spouses? In-laws (sons and daughters, particularly) can be a problem. Whether it is well intentioned or not, meddling is a specialty with some people.
Unless you spell out your wishes in a Will, the door may be open for fighting between family members.
Modifying your Will – Codicil
A Codicil is a legal document that changes specific provisions of a last will and testament but leaves all the other provisions the same. You can modify, update, or even completely revoke your last will and testament at any time as long as you’re mentally competent. The question becomes, when should you make a codicil and when should you write an entirely new will?