West Virginia Assistive Technology System

Writing a Will

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What happens to someone's valuables, property and assets after death is not always simple. Family arguments over inheritance can be caused because a will was not written, or what is written in a person's will is not legally binding. For your will to be legally binding, it must be documented according to what state law says. When you have a valid will, it will be followed, or executed, according to your wishes.

If your will is not clear or does not follow state law, your final wishes may not be carried out as you want. If your family decides to go to court over inheritance problems, then a judge will make the final decisions. The judge's decision will be guided by the law.

To make sure your will is valid (follows the law), work with a lawyer to write it. There are do-it-yourself kits for people to write their own wills. However, it is easy to make mistakes and oftentimes, write-yourown- wills turn out not to be legally binding. A lawyer's fee to write a will can be a lot less than going through litigation (having a judge make a final decision).

What makes a will legal?

There is more to writing a will than just writing down to whom and where you would like your things to go. There are several things that have to be done in order to make your will legal.

Two witnesses, who will NOT be receiving anything from your will, must be present when your will is signed.

You will need a self-proving affidavit to go with your will. A self-proving affidavit is a legal document that proves your will was properly signed and that you were of sound mind and body when you signed it. This means that no one can question what you wanted at the time you wrote and signed your will. A self-proving affidavit must also be signed and stamped by a notary. If you work with a lawyer to write your will, he/she will get it notarized for you and provide witnesses.

Can I change my will?

You can change your will after you have written it and have had it notarized. Marriage, divorce, birth, death, changes in assets, an illness, or a change in your feelings towards a beneficiary (person who is to receive part of your property) are all events that may make you want to change your will.

All changes to a will should be made by a lawyer. This will guarantee that changes follow state law. You cannot simply write in changes or cross things out in your will. Changes must be witnessed in order to be legally binding.

If you get divorced, you may want to take your former spouse out of your will as a beneficiary. Remember to remove your spouse from all other important legal documents as well.

Preparing to write your will

If you meet with a lawyer, there are some things to keep in mind.

  • It is entirely acceptable to ask a lawyer how much their services will cost. Some will charge by the hour. Others may charge a flat fee.
  • The lawyer may send you a questionnaire to fill out before your first appointment. The questionnaire helps you get an idea of your final wishes and what possessions and assets should be included in your will.
  • It is a good idea to review any important documents that have to do with your estate (what you own that is of value, savings, etc.) before meeting with a lawyer. These documents may include property deeds, retirement plans, life insurance policies, divorce decrees, prenuptial agreements, powers of attorney, trusts, existing wills, auto titles, bank accounts, and anything that might show what you own and its value. You may also want to take these documents with you when you first visit the lawyer.

Other things to think about

  • Think about having a back-up beneficiary (person to receive your property) in case the person you want to inherit most of your belongings dies before you do. For example, "I give my car to Bob and if he shall not survive me, to Tina."
  • Let the person you have chosen to be your executor (the person who will handle your estate after you die) know that you would like him/her to be your executor. The person you choose may not want to take on the responsibility. If this is the case, then you have time to choose someone else.
  • Think about what age you want your children to be before receiving their inheritance. This is especially important if you die while they are minors. You can choose at what age they receive their inheritance.
  • Common ages parents want their children to be before receiving inheritance are: 21, 25, 30 and 35. Some parents choose to make their children's inheritance conditional; that their children must achieve certain goals or milestones before receiving their inheritance. For example, you may choose for your children to receive half of their inheritance at age 18 and the other half when they receive a college degree. Be sure your conditions do not go against public policy. For instance, inheritance cannot depend on your child getting a divorce.
  • If you own a business, you may want to consider including a buy-sell agreement in your will. This gives a business partner the first right to 'buy out' the other partners' portion of the business when he/she dies.

Resources

West Virginia Senior Legal Aid is a non-profit legal aid organization focused on assisting older adults in legal issues. Their lawyers can help you write a will at a lower cost than private firms. They can also help with overall estate planning. Call West Virginia Senior Legal Aid at 800-229-5068 or you can visit www.seniorlegalaid.org.

Legal Aid of West Virginia provides free advocacy services to West Virginians. They provide legal assistance, assistance for residents of long term care facilities, and services for individuals who live with behavioral health challenges. Legal Aid has 12 offices throughout the state from Wheeling to Princeton, Martinsburg to Logan. To find your local office, visit www.lawv.net or call 866-255-4370.