The goal of a last will and testament is to give written instructions to divide and distribute assets after death. The person creating a will is called the Testator. The Will also names people to achieve the Testator’s affairs upon death and potentially act as either trustees or guardians for his children or loved ones after death.
When the Will is created, the Testator must
- have the proper capacity (ability to understand his decisions),
- have the intent to create a Will,
- sign and date the Will in the presence of two witnesses, and
- never subsequently revoke the Will.
If each of these elements is satisfied, then the Will is a valid document to control the Testator’s estate disposition.
With a valid last will and testament, a Testator can use different tools to divide the estate. For example, he can leave gifts of specific dollar amounts or divide them into percentages. A well-drafted Will should be typed, signed by the Testator in the presence of two witnesses, and it should also include a Self-Proving Affidavit signed by the Testator, two witnesses, and a notary.
The Self-Proving Affidavit is an affidavit attached to the last will and testament. The Testator and witnesses swear that the Testator signed the Will in the presence of the witnesses and that he intended it to be his and had the required capacity to create a Will. The affidavit also confirms that each of the witnesses was over the age of 14 when they signed the Will and that they saw each other sign the Will.
Although a Simple Will usually does not involve any provisions targeted to eliminate the estate tax, it should include provisions related to guardians for minor children and also trusts for either small children or incapacitated adults when necessary.
Guardians and Trusts for Children in a Last Will and Testament
All parents of minor children are concerned about the care of their small children. In a Will, the Testator can include terms that designate the person that the Testator wants to care for his children. That Testator can also designate someone to manage money that left for the children. The Trust can be in your Will, but it does not become effective until the Testator dies. However, upon that death, the Trust is funded with the assets that you designated for your children to get. Through this Trust, the Testator can select that the Trust continues until a certain age of your children or for their life. When the Trust terminates, your children will receive the assets of the Trust outright. However, before the termination date, the Trustee will have the ability to make distributions for your children’s health, support, education, and maintenance. This provides a mechanism for a responsible person to make decisions for your children.
It is important that you consult an attorney in your state to ensure that your will is valid.
Board Certified Estate Planning & Probate Attorney in Waco, Texas
The following attorney at Dunnam & Dunnam engages and is certified as a specialist by the Texas Board of Legal Specialization in the practice of Estate Planning and Probate Law:
- Vance Dunnam, Jr. (certified since 1983)
The following attorneys at Dunnam and Dunnam, also, engage in the practice of Estate Planning – Probate Law:
Call one of our Waco Estate Planning and Probate attorneys today at 254-753-6437.