Do I Need a Last Will?
If you die without a Last Will then your estate is considered “Intestate.” Being Intestate means that the State decides how to distribute your property amongst your heirs. Arkansas has its own set of Intestacy Rules, which are found in Arkansas Ann. Code § 28-9-214. The two most surprising things to clients are (1) not all assets pass to a surviving spouse and (2) surviving spouse’s in marriages less than three (3) are treated less favorably than longer marriages
What is a Last Will?
A Last Will and Testament is one of the most common estate planning documents available today. A Will is a document that controls who receives your property, who your children’s guardian will be, as well as who will manage your estate after your death. A Will only has control over your probate assets, and does not have an effect on items that have a listed beneficiary or any jointly-held assets, unless said beneficiary predeceases you. Generally, everyone should have at least a Will to avoid unnecessary litigation and to make wishes clearly known.
What is the Purpose of a Last Will?
A Will is used to dictate how your probate assets are allocated upon your death. A Will will have language addressing property ownership, but it should also have language concerning asset protection. A Will can also name a guardian for your minor children, if needed.
If you don’t have a Will, the state’s Intestacy Rules will dictate how your assets are allocated, and your wishes may be ignored. Having a Will allows you to select who receives your assets, instead of the State. Though it is possible for you to allocate some assets through Beneficiary Designations or Joint Ownership, a Will gives you much more control and flexibility. A Will also allows you to leave assets in a trust, if you have one established, which can shelter your assets from any possible creditors.
The oldest Last Will ever found was discovered on a parchment near Kahun, Egypt in 1890 by an English archaeologist William “Flinders” Petrie. The parchment actually included two Last Wills, which were written around 1797 B.C. Interestingly, the Last Will of Uah named a guardian for his children and forbade his wife from destroying the houses he received from his brother. Not much has changed in 400! Today, our clients are also concerned about their children and making sure their estates are not squandered by family.
What Are The Requirements That Make a Last Will Legal?
States will have different rules covering a Will’s execution, but Arkansas generally requires the following guidelines:
- Eighteen Years of Age and Sound Mind: The person signing the Will cannot be mentally ill or disabled and must be acting of his or her free will, without undue influence.
- Witnesses: The state of Arkansas requires two witnesses to watch the signing where the person declares the document to be his or her Will, and then sign as witnesses. The rules about who may or may not serve as witnesses can vary.
In most states, including Arkansas, you will want your Will to include a Self-Proving affidavit. This page is notarized and allows the executor to file the Will without the witnesses being present. If a Last Will is not executed properly, it can slow down the probate process, require the attorney to locate witnesses, and lead to a contest of your wishes. When are firm executes your estate plan, you can have confidence we will follow the execution requirements of the law.
TIP: “Sound mind” is often a concern for families. As an estate planning and elder law attorney, we are given broad discretion to give testators (individuals who sign a Last Will) the benefit of the doubt. A testator may have diminished capacity and still be qualified to sign estate planning documents. Often individuals with capacity issues may have good days and bad days. We offer free rescheduling to accommodate our clients’ needs including scheduling morning or afternoon appointments.
Do I Need An Attorney To Draft My Will?
We strongly advise using an attorney! As a law firm, we have seen so many families destroyed by bad planning. Most individuals who do their own estate plans have good intentions. The two most common substitutes for an attorney are (1) online forms and (2) a holographic (hand-written) will. Online forms are often viewed as a cheaper alternative to legal services. Unfortunately, these companies often fail to give you the BEST advice. Over the years our firm has encountered a number of errors and incomplete estate plans created by online companies. There is simply no substitute for an attorney’s advice and counsel. Holographic or hand-written Last Wills are the second alternative. There are often a number of issues associated with these types of documents. The most common errors in these documents are (1) incomplete family information; (2) failure to use the correct terms; and (3) improper words of conveyance. Bottom line, your estate planning documents will be the last document of your life and will include your entire estate and your final wishes. We believe in the value of proper planning. A well drafted Last Will is a great step in the right direction.
TIP: A Last Will and Testament does NOT avoid probate. See Revocable Trusts. However, nearly every estate plan includes some type of a Last Will.
At McClelland Law Firm, we believe that limiting our practice areas provides the greatest value to our clients. To us, value means providing exceptional service and efficient processes for each of our practice areas.
We are committed to compassionate representations, especially as it relates to elder law. No one should feel pressured, controlled, or “talked down” to in any meeting. Every client deserves to be heard and understood.