The Importance of a Will
A common question people who are just starting their estate planning journey may ask themselves is "why do I need a will". This is a fair question, as people should always be inquisitive when dealing with new or foreign concepts. This brief article will explain what a will is, it's purpose, why it is a beneficial tool in estate planning, and how to go about creating a will.
1. What is a Will?
A will is written document produced by an adult individual that directs what should happen to their belongings when they pass. Each state has their own definition of what a valid will is or looks like. As long as a will meets the legal requirements in the jurisdiction it was created in, it will be deemed legally effective. In South Dakota a will is a document in writing, containing testamentary language (meaning it reflects the individuals intent to distribute their property upon passing), signed by the individual and witnessed by two or more individuals. South Dakota also offers the option of a holographic will. A holographic will is a document with testamentary language, in the individuals hand writing, signed by the individual. No witnesses are necessary for a holographic will to be valid.
2. What is the Purpose and Benefit of a Will
The main intended purpose of a will is to direct how your property will be distributed. Without a will your property is divided according to predetermined legislative rules typically referred to as "intestacy laws". Without a will the court will automatically transfer your property according to these laws. Typically your property will go to your spouse, then your children, parents, siblings, and more distance relatives should no other relatives survive you. This gives you and your family almost no say as to how your property is to be divided. Furthermore, the division of property amongst various relatives can lead to fighting between family members, extended probate times, and additional attorney's fees. These issues are often avoided through the use of a will.
In addition to the added benefit of being able to distribute your money the way you wish, a will can also name an executor. An executor is typically a trusted individual in your life who will have the responsibility of ensuring that your property is divided the way you wish, leading to added efficiency in getting through probate. Additionally, your will can direct how the executor is to sell property to cover debts of your estate, ensuring that specific property is maintained within the family as much as possible.
A will can also help you prevent certain people from getting your assets when you pass should you wish for them to not have them or have direct access to them. For example, if you have children and you do not want them to receive a large lump sum of money all at once, you can create a testamentary trust within the will that directs how and when a trustee should distribute money or assets to that individual, and for what purposes. This allows you to ensure that any gift you make is spent and distributed how you wish.
These are just some of the various benefits to having a properly drafted and executed will as a part of your comprehensive estate plan.
3. How to Create a Will
Creating a will can be a confusing and difficult process. Although it appears to be relatively simple, small details in the law can drastically alter the results of a document making it ineffective. These pitfalls can lead to lengthy litigation and attorneys fees. Anyone considering creating a will should begin to gather information relating to what property they own, what debts they have, what gifts they have given, who they wish to have what property, who they trust to serve as executor, and how and when they want that property distributed. In order to avoid potential pitfalls created by improperly drafted wills it is important that individuals work with a trusted attorney to ensure that their will achieves their estate planning goals, helping to preserve their legacy and take care of their loved ones.