There are certain estate planning documents that absolutely everyone needs no matter what their situation in life. The most well-known of these documents by far is the Last Will and Testament, usually shortened to just ‘will.’ While the will performs a lot of functions, it is a document that above all else provides a legally binding document that directs where your assets are to go after you pass away and who oversees that process. Be aware of the limits of a will though, as a will is not an all-in-one estate planning document.
Before you become incapacitated or pass away, everyone should sit down with an estate planning attorney and make a will. A will must be created before a person becomes permanently incapacitated or dies. It is not possible to create a will for a person who has already passed away. If you pass away before you create a will, you are said to have died intestate and your assets are distributed according to state law. Most people are not comfortable with the government dictating where their assets go; the state will not pick and choose who receives an inheritance. In some cases, this can cause estates to be distributed to someone you do not want to receive anything, such as a separated spouse or a child who cannot handle their own financial affairs.
A will nominates an individual to be put in charge of the whole process of distributing your assets after you pass away, a process called probate. This person is called the personal representative or executor. This is the person who will be in charge of marshaling your assets, notifying heirs and creditors of your passing, selling assets and distributing the proceeds. The personal representative will distribute your assets according to your wishes as recorded in your will. Another important function that a will performs is nominating a guardian for any dependents or incapacitated individuals who are legally in your care when you pass.
In Indiana, for a will to be valid, the will must be signed in the presence of two disinterested witness, who in turn also add their names to the will to attest that they have witnessed the signing. The person signing the will must know that the document they are signing is their will and that they understand the assets and extent of the property. If a will does not have the necessary signatures, has interested witnesses, or is not properly witnessed, the will may be found to be invalid.
An important thing to note is that a will is created for probate. It is the only document that is accepted by a probate court as the final, legally enforceable wishes of the deceased. It does not avoid the probate process at all and should not be confused with probate alternatives.
Do not attempt to put together a will on your own. While there is nothing wrong with writing out your own will and executing the will yourself, there are quite a few legal considerations that go into making an effective estate plan that should not be taken lightly. Many individuals who make their own will do not respect the requirements under Indiana law and end up passing away with an invalid will, or a will that does not carry out their wishes.
If you are considering writing a will, contact Steciuch Law at 219-476-3870 or at firstname.lastname@example.org for a free estate planning consultation.