A Last Will and Testament is one of the most important legal documents a person can create during his or her lifetime. If a person dies without a Will they are said to have died “intestate” and state laws will determine how and to whom the person’s assets will be distributed. If a person dies without a Will the beneficiaries can not dispute the court’s distribution of that person’s estate under the intestacy laws. Even if that person expressed different wishes verbally during their lifetime the statutes control the distribution. With a valid Will, a person can legally determine how their property will be distributed and to whom. Most intestacy statutes distribute a deceased person’s assets between a surviving spouse and their children or to only the children if there is not a spouse. If there are no surviving children the assets then are generally distributed to extended family members. Making a will also gives you the opportunity to name an executor (the person responsible for distributing your assets) and a legal guardian for your children. A Will must meet the legal requirements set forth by the state in order for it to be valid. Most states will also accept a Will that was executed in another state if the document is a valid Will under that state’s law. The general requirements for a valid Will are usually as follows: If a Will’s authenticity is unchallenged it may be probated in a simplified procedure if it has been self-proven. Witnesses to a self-proven Will are not required to testify in court because the court automatically accepts a self-proven Will as authentic. To self-prove a Will the testator and the witnesses must swear in an affidavit before a notary to the authenticity of the Will. The affidavit should be part of the Will or attached to it. Make sure they are all provided for individually in your will—it sounds basic and obvious, but don’t name just one child and assume the court will automatically grant custody of all of them to the same legal guardian. This may be a particular concern if you have a child with special needs. If you want your children to stay together, specify this in your will. In fact, if this factor is more important to you than the legal guardian, say so that is, if for some reason the court does not approve your choice of guardian or your chosen guardian cannot serve but you would still like your children to stay together with a different guardian as named by the court, make this preference clear in your will. Especially if you prefer your children to stay together, is your chosen guardian in the position to care for all of your children, emotionally and otherwise? Does he or she have other children as well? How will the families blend? If your preference is to have your children raised in a two-person home, be sure to name each member of the couple as a co-guardian. For example, if you would like your sister and brother-in-law to jointly raise your children, include them both as co-guardians. Many people immediately think of their own parents for guardians of their children, but consider the age and general health of your chosen guardian and whether he or she will be able to handle the physical demands of raising children. If your children are nearing the age of majority, this may not be as much of a concern, but if you have younger children, it could be a very important consideration. Many parents would prefer that their children be able to stay in their same school or at least school district should something happen to them; either way, it’s important for you to consider where your child would be attending school while living with his or her new guardian. As a parent, you know that raising children is expensive, so while ideally, you will have prepared financially for your children ahead of time with estate planning, be sure to consider your chosen guardian’s financial resources as well. You probably would prefer a guardian who shares your basic values and goals as a parent so that your children will be raised similarly to the way you would have raised them. If religious doctrine or alternately, not teaching religious doctrine is particularly important to you, you should consider this when choosing a guardian. Think also about whether they can handle the responsibility of raising your child as well as what kind of parent they would be—are they patient, kind, and mature? Do they already get along well with your children? Before you make this decision and include a named guardian in your will, sit down and talk with your choice. First and foremost, you want to make sure that he or she will agree to becoming the guardian of your child should anything happen to you, but it is also useful to discuss all the considerations discussed above so you know for certain the answers to those questions. Part of your job as a parent now is to decide who you would want to care for your children in the event of your death. Imagine if writing a last will and testament were a pre-requisite to graduating from high school. The graduate walks across the stage, hands the completed will to the principal, and gets the diploma in return. It might sound strange because most 18 year olds have little in terms of assets but it’s a good idea for all adults to draft a last will and testament. Graduation from college is another good milestone to use as a reminder to create an estate plan. If you haven’t created a will by the time you marry or are living with a partner in a committed relationship then it’s fair to say you are overdue. Here Are Some Key Documents to Have Alongside Your Last Will and TestamentFilling out your last will and testament form is essential, but it’s not the only document you’re likely to need. You might also think about: Disadvantages of a Last Will Will and Testament LawyerWhen you need a Will and Testament Attorney, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC
8833 S. Redwood Road, Suite C West Jordan, Utah 84088 United States Telephone: (801) 676-5506
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