Will Preparation and Will Drafting

First: A Will is a COMPLEX WRITING

All the normal people are fighting to discover how to write a will.

However, this presents a unique opportunity for the smart planner like you.

The government usually has a plan in place if you don’t.

However, by writing a will, your plan takes over.  Your goods go where you want them to go (with certain limits).

A Will has many components that must be done in order for the will to

1. Not be challenged easily
2. Be valid
3. Revoke all prior wills
4. Disinherit children and heirs properly
5. Be properly signed (in a signing ceremony)

These are only a few of the things you need to know.  Only a professional estate planning attorney knows all of the ins and outs of a will.

Second: A handwritten (holographic) will is valid in Arkansas

You can write your will out longhand. At probate time though, it may take the testimony of three credible witnesses, who are not mentioned in the will, to validate the handwriting and signature. (Arkansas Code Annotated § 28-25-104).

However, it is not recommended by me, except in emergency situations, that a person writes their own will without knowing all of the pieces that are needed and how real estate is handed down properly.

Third: Introduction

The introduction to a Will must

1. Declare that it is the last Will and Testament
2. Declare that all past wills and codicils are not valid, in the right language

Fourth: Leaving Gifts other than Real Estate

It is best to just make a list of what you want to go to whom and not attach conditions.  When you start to attach conditions to gifts, it muddies the water.  By leaving gifts with conditions, it opens the will up to challenges.  And, the more vague the condition, the more likely challenges are.

Fifth: Leaving Gifts of Real Estate

It is best to just give gifts of real estate outright to the person you want to have them. When you start adding conditions you may run into a thing called the “Rule Against Perpetuities.” It is a complex rule that can cause the real estate to not go to the person you intended.  And, like above, the more conditions you put on something, the more likely a challenge against the will.

Sixth:  Disinheriting children or skipping a generation

If you have children that have either made it on their own, or you just don’t want to leave anything to, that is your right.  Just remember, to disinherit or skip a child:

• The child must be mentioned in the will
• You should explicitly state that they receive no gift, or that they get $1.00

Seventh: The no compete clause

It is very important to have a no compete (in terrorem) clause in your will.  Basically, if somebody challenges the will and doesn’t win, then they won’t take under the will.  This paragraph needs to be specifically crafted.

Eighth: Disinheriting a spouse

Don’t even try to disinherit your spouse.  The spouse can make a, usually valid, claim against the will for about 1/3 (in Arkansas).

Ninth: Signatures, Self affirming affidavits, and Witnesses

Of course, a will requires your signature.  And it requires the signature of “disinterested” witnesses.  Disinterested witnesses are those that are not mentioned in the will.  They will not gain anything because of the will.  During probate, the witnesses may have be called to validate your signature, unless…

You have added a self affirming affidavit to the will, by which the witnesses swear they saw you sign, and it is your signature.  This affidavit takes the place of calling the witnesses in probate proceedings.

Tenth: Capacity

Of course, since you are reading this, you should have the needed mental capacity.  To create a will, it does not take much mental fortitude.  A person must simply be aware of what they have and who they want to give it to.

Eleventh: The rest and residue clause

I almost forgot one of the most important parts of a will…  This part of the will tells who everything you have not specifically given away goes to.

This article has just touched on the basics of writing your own will. There is so much more to know to write a good will. If you also add in a trust, then it just gets more complicated.

from Protecting You And Your Family http://ift.tt/2acN3So


from DeWitt Law Firm, PLLC