Last Will & Testament

If you die without what is known as a valid last will and testament, you have died "intestate." When this happens, the intestacy laws or laws of succession of the state where you reside will determine how your estate is distributed. An order of priority is applied in accordance with the rules of intestacy and succession to those who are entitled to inherit your assets, title or property. Such inheritance distribution may not in any way be in line with your choices or preferences.

An inheritance is a financial term describing the assets passed down to individuals, organizations or government after someone dies. Most inheritances consist of cash that's parked in bank accounts but may contain stocks, bonds, cars, jewelry, automobiles, art, antiques, real estate, and other tangible assets.

A will or testament is a legal document that expresses a person's (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution (devolution).

Throughout most of the world, disposal of an estate has been a matter of social custom. Originally, a will was a device intended solely for men who died without an heir.

If you have a valid will, you are said to die testate, meaning you have spelled out your intentions completely and legally in your last will and testament. A will status of intestate means you don't have a valid will, which means that you have no say whatsoever in how your estate is distributed and who receives it.

Any person over the age of majority and having "testamentary capacity" (i.e., generally, being of sound mind) can make a will, with or without the aid of a lawyer.

A will is a legal document that allows you, as a testator, the ability to designate the way in which your assets will be distributed upon your death. Assets that may be designated for distribution in a will may consist of both real and personal property. Typically, in order for a will to be valid, the will must be:

• all of your intentions should be produced in writing;
• the Will is to be signed by you or a person in your presence and by your direction (the latter is not recommended unless there are special circumstances, such as you are physically unable to sign it);
• your signature and those of the witnesses should preferably be placed at the end of the Will;
• the Will should be dated before it is signed;
• your signature should be witnessed by two persons (aged 18 or above) present at the same time who should then sign your Will in your present; and
• the witness and his/her spouse should not be a beneficiary under your Will. If a beneficiary or his/her spouse witnesses the Will, the gift to the beneficiary under your Will is forfeited.

An existing will can be replaced/revoked by a new will at all times.

A reciprocal will, also sometimes called a “mirror will, or mutual will” is a specific will used by married couples or life partners as a means of transferring all of their property to their surviving spouse or partner upon their death.

As the name indicates, reciprocal wills are essentially two separate wills that are mirror images of one another.

However, reciprocal wills do allow each individual spouse to still distribute specific personal property to other specific beneficiaries, besides the other spouse. After specific transfers to beneficiaries, the surviving spouse will then receive the entirety of whatever is left of the decedent’s (spouse who passed away) estate.

Additionally, in the case where the beneficiary spouse or partner has already become deceased, a reciprocal will allows the surviving spouse’s estate to pass to the children of the deceased spouse or their other surviving lineal descendants.

Whether or not a reciprocal will arrangement is the right arrangement for you and your significant other will depend on various factors. These include both of your individual needs and desires for the disposition of your respective estates upon your deaths.

Below is a list of advantages and disadvantages to consider when deciding whether or not a reciprocal will arrangement is the right arrangement for you and your partner.

Advantages:

• Reciprocal wills are typically simpler and less expensive than drafting a joint or mutual will;
• Reciprocal wills allow for partners to avoid the time and expense of the probate process; and
• Reciprocal wills allow partners to pass the majority of their estate to their partner, without having to deal with their state’s intestate succession laws.

Disadvantages:

• Reciprocal wills are impractical if either of the spouses were previously married and had children that resulted from that marriage, as children from a previous marriage would not be included in a reciprocal will arrangement;
• Reciprocal wills are impractical if you and your spouse are unable to agree on who to leave your property to in the event of both of your deaths; or
• Either spouse is free to change their personal will arrangement at any time. Because a reciprocal will leaves all of your estate to the surviving spouse, if the surviving spouse later remarries and creates a new reciprocal will with their new spouse, children of the first marriage or named beneficiaries may lose their inheritance.

As can be seen, reciprocal wills can be a great option for couples seeking a simplistic and cost effective way to dispose of their estates upon their death. However, reciprocal will arrangements are not always the best or most cost effective estate planning solution for couples with complex estate planning needs, such as previous marriages or relationships with children.

A will doesn't have to be notarized to be valid. But in most states, you'll want to make what's called a “self-proving affidavit” part of your will—and the affidavit must be notarized, which means that you'll need a notary public at your will-signing ceremony.

There is no legal requirement that a will be drawn up by a lawyer, and some people may resist hiring a lawyer to draft a will. People may draft a will with the assistance of a lawyer, use a software product or will form, or write their wishes entirely on their own. Some lawyers offer educational classes for people who want to write their own will.

In 1973 an international convention, the Convention providing a Uniform Law on the Form of an International Will, was concluded in the context of UNIDROIT. The Convention provided for a universally recognized code of rules under which a will made anywhere, by any person of any nationality, would be valid and enforceable in every country that became a party to the Convention.

These are known as "international wills". It is in force in Australia, Belgium, Bosnia-Herzegovina, Canada (in 9 provinces, not Quebec), Croatia, Cyprus, Ecuador, France, Italy, Libya, Niger, Portugal and Slovenia. The Holy See, Iran, Laos, the Russian Federation, Sierra Leone, the United Kingdom, and the United States have signed but not ratified. International wills are only valid where the convention applies. Hong Kong is not a signatory on the 1973 Convention.

Although the U.S. has not ratified on behalf of any state, the Uniform law has been enacted in 23 states and the District of Columbia.

For individuals who own assets in multiple countries and at least one of those countries are not a part of the Convention, it may be appropriate for the person to have multiple wills, one for each country. In some nations, multiple wills may be useful to reduce or avoid taxes upon the estate and its assets. Care must be taken to avoid accidental revocation of prior wills, conflicts between the wills, to anticipate jurisdictional and choice of law issues that may arise during probate.

Having a will is arguably one of the most important things you can do for yourself and your family. Not only can a will legally protect your spouse, children, and assets, it can also spell out exactly how you would like things handled after you have passed on. Having a will most importantly also means that you, rather than your state's laws, decide who gets to enjoy your property when gone...

Food for thought!