There are several basic elements to a will. These are the elements required to make a will valid and have the will distribute your property at your death. I have not included an exact number for the basic requirements, because doing so would seem like just a checklist, and I want this blog to be more than that.
This blog will focus on the basic elements for a will, like having your will be yours. Having your will be yours, making sure your will describes how you want to distribute your property, and picking someone who can carry out your instructions in your will properly are basic requirements. Lastly, you do need to meet the technical requirements for your will to be valid.
Your Will Needs to be Yours
A will needs to clearly identify that it is your will. Your will needs to be yours, and not come from anyone else. This seems like an obvious thing, but it seems to be so obvious that I need to explain why something that seems so obvious is so important. Your will being yours is the first line of defense against fraud. I don’t want somebody who is not you to prepare a will for you.
Identifying who you are is the first basic, necessary step for your will. There are many people who go by different names, so it is important to identify you properly. For instance: I have a first name, a middle name, and a last name. I rarely identify myself by all three names if I am introducing myself to someone in normal life. My full name is on my driver’s license,and on my social security card, but my bank account only has my first and last name on it. My car is only titled in my first and last name, but my house has my first, middle, and last name on the title. My house was not always this way. It took three refinances to somehow have my full name end up on the deed to the house…and not because I asked for it to happen either! It just kind of happened that way. If you have more than one name you go by, or more than one form of your name, then the will should list all forms of your name to ensure you are properly identified.
Your Will Must Describe What You Want to Happen to Your Assets
Of course, the most important part of your will is the part where you describe what you want to have happen with your assets. Once you have identified yourself, you want to make sure your wishes are carried out so your assets will be distributed where, and how you want them to be distributed.
There is no one right or wrong way to distribute assets through a will. You can give your assets to whomever you please, whether that be your children, a charitable organization, an educational institution, or someone who seems like a complete stranger. Most people tend to leave assets to their children, and usually in equal portions, but that is not always the case.
Unequal Distributions Are OK
I see unequal distributions happen quite frequently with my elderly clients who have grown children, especially where one of the adult children is caring for the elderly parent. The elderly parent may not have a lot of liquid assets to pay the adult child who is caring for the elderly parent, so the will may reflect a larger payment to the adult child who cared for the elderly parent towards the end of the parent’s life. Such a payment can be made possible by selling of assets that were not liquid and otherwise used while the parent was alive. Many times parents will have a house, and when the parent passes away, the house will be sold, so liquid assets can be distributed to the adult child who was a caregiver. This means not all of the children will receive equal amounts, but it may be the most fair way to compensate a caregiver child for the work put in before an elderly parent passed away.
Other situations may also dictate unequal distributions. One child may have a lot of money, while other children struggle financially, so a parent may choose to leave more assets to the child / children who are struggling. One child may have special needs, and be unable to work, so a larger portion may be left to that child, and the other children may be given less money out of a will. Still other children may have become distanced from their parents, and if feelings get hurt badly enough, one or more children may be cut off from an inheritance. I hope that is not the case, and that whatever hard feelings exist can be addressed and mitigated before cutting someone off, but it does happen.
Your own wishes need to be clearly spelled out in the will. The more clear you can be, the better the will can accomplish your wishes after you have passed on. If your wishes are not clear, then confusion can take over, and that never seems to lead to a good outcome. You want your will to eliminate confusion, not add to it. This is why the most vital part of your will are the distribution instructions. The distribution instructions tell the person carrying out your instructions how to distribute assets after you pass away.
Who Distributes Your Assets Is Essential, So Choose Wisely
You also want to make sure you pick someone to distribute your assets that will carry out your wishes properly. The person who carries out your wishes is called a “personal representative,” and that person has a very important role. The personal representative is responsible for taking the will to the probate court and is responsible for getting through the necessary steps of probate. Probate is the legal process of getting the assets out of the name of the deceased person, and getting the assets to the named beneficiaries in the will. The person carrying out the instructions is required to follow the instructions in the will, and has many responsibilities to hit deadlines set by the law and the probate court, so having someone who will handle this responsibility in a timely and correct manner is imperative.
Make Sure You Hit the Technical Requirements – Make Your Will Valid
You also will need to meet the technical requirements for a valid will. If you write your own will, then the material provisions should be in your own handwriting, and the will needs to be signed. This is called a “holographic” will – meaning it is in your own handwriting. Holographic wills are allowed and valid under Colorado law.
However, if your will is typed, then you will want to sign your will, and you will want to have the will signed in front of a notary. If your will is typed, then just signing the will is not enough to make it valid. You must meet the signing / witnessing / notarization requirements for the type of will that you create.
Meeting the Basic Requirements is Good, but You May Want More
You want your will to be yours and you want to be the one to sign it, not someone else. However, just meeting the basic requirements may not get you all that you want. While not disparaging a basic will, you may want to ensure your will does what you want, and is not stuck being too basic, or too simple. Let me help you create a will that meets the basic requirements, but is still yours!