A Last Will and Testament, or will, conveys how a person wants to distribute his or her assets after death. Most military families are familiar with wills because service members often execute a will before they deploy. People who have a lot of assets whether its investments, property, or money in the bank are also pretty familiar with wills because they want to ensure their assets go to the family, or friends, or charities they prefer after they pass. Writing a will might sound like a grim task, but it's one of the best ways to ensure that your wishes will be honored after your death. Wills are not just for servicemembers and the very wealthy either, wills can help your family and a court decide who gets custody of your children or who will get your car or home, they can also include directions on how you want your funeral service to happen or other end of life decisions. Do you want your ashes spread over your favorite cliff? Do you want to be buried in your family plot?
Why do I need a will?
Even if you're in the prime of your life, a will ensures that – if something were to happen to you – your assets and loved ones will be taken care of the way that you want them to be. Beyond describing how you want your assets distributed after your death, a will offers you a way to name a personal representative who will help get your affairs in order after your death (by paying bills, distributing your estate, and collecting assets, etc.). A will also allows you to make bequests to charity, nominate a guardian for your children, and name heirs.
How do I create a will?
Creating a legal will is a simple process in the United States. According to the Maryland Office of the Register of Wills, a will must be:
- In writing
- Signed by the testator/testatrix (the person creating the will)
- Signed by two credible witnesses in the presence of the testator
Additionally, the testator must be at least 18 years old and of sound mind and judgment at the time of the signing. This means that someone who is not “legally competent” (in other words, capable of making their own decisions, being rational, and understanding the consequences of their own actions) cannot create a will – this reduces the chance that someone will be pressured into bequeathing assets unintentionally.
When should I prepare my will?
Everyone over the age of 18 should have a will, and should regularly update their will after major life events, like marriage, the birth of children, or anytime you acquire a large asset. Wills can be updated with “codicils,” documents that allow alterations to an existing will and make the new change legally binding.
What about handwritten wills?
In most states, a will cannot be handwritten (otherwise known as a “holographic” will). Virginia is one of the few places where handwritten wills are recognized: according to the Code of Virginia, “A will wholly in the testator's handwriting is valid without further requirements, provided that the fact that a will is wholly in the testator's handwriting and signed by the testator is proved by at least two disinterested witnesses.”
Do I need to “file” my will?
You should keep a copy of your will in a safe place, where a representative taking care of your estate after your death will know where to find it. For safekeeping and ease of access, you can also file your will with the Register of Wills in your state or commonwealth for a small fee, although you are not legally required to do so.
What happens if someone dies without a will?
When someone passes away and has no will in place, their estate is considered “intestate,” which means that your assets will be divided according to the laws of your state of residency – and not necessarily the way you would have wanted. Most states' intestate laws are designed to benefit the family in the case of someone's death.
For example, in the state of Maryland, the Office of the Register of Wills decrees that when someone passes away and leaves behind a spouse and any children under the age of eighteen, half of the estate goes to a surviving spouse, and the other half goes to the children. In cases where the surviving family members are above the age of eighteen, or the testator had no children, division of the estate is decided based on the relationship of those family members to the testator – there are cases laid out to ensure that a person's family is first to receive assets if the estate is left intestate. (And in cases where there are no surviving relatives, the assets are distributed to the Board of Education.)
Do I need an attorney to write a will?
No, you do not, but one of the reasons wills end up in court is because they are poorly written, or there are competing wills, or a family member can counter that the person making the will was not competent or was being influenced be someone. Disputes about the execution of a will are not uncommon, one way to avoid such disputes is to hire an attorney to assist you in drafting and filing your will.
If you're ready to draw up a new will, making changes to an existing one, or need assistance filing or executing a family member's will, we're here to help. Patriots Law Group has assisted in all aspects of the will process for both servicemembers and civilians.
DISCLAIMER: The information above is for general informational purposes only. No attorney-client relationship is intended or created by this information. Each individual situation is different and therefore a formal in-person consultation is necessary before any specific advice may be relied upon as appropriate and accurate for a given situation. Please call Patriots Law Group at 301-952-9000 to set up a consultation if you wish to obtain specific legal advice you may rely upon. We serve clients anywhere in the world, with in-person consultations available at our Suitland, MD office — right next to Andrews Air Force Base — for clients in Maryland, Virginia, and Washington, D.C.