Last Will

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Section Overview

This section discusses:

 

  • Why you should have a will

  • How an attorney can help with the drafting process

  • The difference between a living will and a last will

  • When you should draft a will

When is the right time to begin planning your estate, and what does this involve? Beginning the process may seem daunting, but the goal is to provide peace of mind for you and your family.

 

Estate planning involves more than just preparation of a will, but wills provide a good starting point for an overview of estate planning. When someone passes away without a will, they are said to have died intestate; when someone passes away with a validly executed will in place, they are said to have died testate. If one dies intestate, their state of domicile will have statutes in place determining how to distribute their property. If one dies testate, their will determines how to distribute their property. It is this power and control that makes wills incredibly useful.

 

In North Carolina and elsewhere, individuals are capable of making their own wills without consulting an attorney. However, it is always advised you consult an attorney when creating or modifying a will. Certain formalities must be followed for a will to be properly executed, and the drafting language of the instrument should plan for multiple contingencies; for example, if the named executor is unwilling or unable to perform their duties, does the will have someone named as an alternate to fulfill this role? An attorney will address issues that may otherwise go unnoticed. 

 

Another reason to consult an attorney during the drafing process is to discuss what assets may be capable of passing outside of the estate and not be subject to the probate process. Joint bank accounts payable on death or with rights of survivorship, for example, may avoid the probate process (however, such assets may still be reachable by creditors). Therefore, planning a will doesn't just involve looking towards the future. There are steps that can be taken right now that can greatly impact your estate.

 

Going back to the question - when should you begin planning your estate? The answer is different for every person, and your life circumstances will change over time. You may get married, have children (or if you already have children, have more children), purchase a new house, etc. Each major life event may impact your estate.

 

Change should not prevent you from planning. A solid strategy is to consult an attorney early on, then meet with your attorney after a set amount of time has passed or after a major life changing event has taken place. Although wills can be drafted to anticipate such events, not every contingency can be foreseen at the time of drafting. Life happens. Your will should reflect your current life, not the life you had 10 or 15 years ago, if possible.

 

For more information concerning wills, contact me at (828) 645-4215 or cmusial@musiallawpllc.com. The North Carolina Bar Association also has helpful information about wills, trusts, and powers of attorney.