When I sit down with a family member, with an individual or a couple, I want to start by identifying their assets and I want to make a list of their assets. Generally, I ask them to make a list of assets before they come in. They will list out their home, if they own one, a car, bank accounts, things that they’ve accumulated over their life with their hard work. What is your list of hard-earned money and property?
The reason I want to do that is it, number one, informs me as the attorney of what we’re dealing with. Number two, it gets them thinking. One the ways that I obtain clarity on any subject is to write things out. As they’re writing it down, I guarantee you, as you do that, you will start to think about those assets and the people or charitable organizations you want to receive them. A will is designed to help you pass your property on after you pass away. A will has no power while you’re alive and only has power after you pass away.
So first, we want to list those assets. Then, we want to identify the people who will receive those assets and your goals. In my experience, just the process of listing the assets will get you 75% of the way toward identifying your goals and what you want to do with those assets. Then I want you to shift your focus just on the goals and go the rest of that 25%. Identify and clarify and write down the people who receive those assets and your goals.
Is your goal to spend every dime you have during the rest of your life taking a cruise? Drive across the country in an RV? Those are valid goals. Maybe it’s to leave a long-term legacy to your family. Maybe it’s to send a grandchild to college. Maybe it’s just split assets evenly among your children. There might be a home that’s been in your family for years and you want to make sure that it stays in your family and is preserved. Wills can be great vehicles to allow you to accomplish those goals. Even trusts can be created within a will. These are called Testamentary Trusts.
Let’s dive into the technical aspect of writing a will. And I would caution you, I always seek professional advice before I take on tasks that are outside of my area that I practice. I had a transmission go out in my car not too long ago. I did not jack the car up in the backyard and try to change that transmission because I don’t work on transmissions. I don’t know anything about transmissions. I know the general idea of what they are, but for me to get in there and break one open or fix one or replace one in my car, a newer car, I think would be foolish on my behalf. I took the car to a mechanic’s shop that’s just worked on transmissions and I had them fix the problem. Same principle applies here. When you’re writing a will, you’re really going into an area that’s complicated law and I would recommend that you seek the advice of a reputable estate planning and/or elder law attorney to assist you in doing so or to interpret what you want, work with you, and write that will for you to make sure that it’s legal and valid under the laws of the state in which you live.
Right now, we’re in North Carolina. I’m an attorney in North Carolina. If I wrote your will, it would be for a resident of North Carolina and it would comply with North Carolina law.
When I hear people ask me, and they do all the time, “Hey, Greg, I just want a simple will. I just want a one to two page simple will.” That is somewhat of an oxymoron. There is no such thing as a simple will. The shorter you probably make your will, the more complicated you make the life of your executor and your heirs because you may be ignoring items that are necessary to place in the will for legal reasons. You want your will to be self-proving.
So let’s go through the nuts and bolts of a will and the parts of a will. When I start writing a will, we want to say, okay, we want to cancel any prior wills or codicils. We do that because I don’t want you to have multiple active wills at one time. It’s my recommendation that if you write a new will, that you dispose of the old will. Throw it away, burn it in a fire, rip it up, shred it, because I would hate for someone to find both your new will and your old will, and maybe decide to toss the new will because the other one was more favorable to them. So think about that when you’re writing a new will and dispose of the old will. Make sure the new will clearly states that it disposes of any prior wills or codicils.
Second, I want to identify if there’s any person that I want to cut out of my will. And I’m a big fan of telling plainly, stating plainly in the will, “This person will not partake in my will, is disinherited from my will.” That way, there’s no question that that was your intention. I usually do that in a section where I identify all direct family members as well. So a short biographical section that identifies family members, heirs, beneficiaries that would take under a will or trust.
Then I want to identify my executor. So you want to list and think about who will be your executor. The word executor derives from the word execute or is a variation on the word execute. That’s what they do. They execute your will. An executor doesn’t have free will. An executor can’t go off and do whatever they want to do, although you should appoint a trusted person. Many times that’s a close family member, maybe a spouse or a child or a trusted grandchild. Sometimes it can be an attorney. And I serve in that role from time to time if people need me to, although I don’t jump at the chance to do that.
Your executor simply carries out your wishes under the watchful eye of the clerks at the courthouse and the court process. They have to approve everything that the executor does and make sure it complies with your will and your wishes.
After I’ve identified the executor, I want to search and think long and hard if there is someone else who could be a backup, who can be a substitute? If I go on the road with a basketball team, I’m not going to just take five players with me. I’m going to take 10 because I’m going to have subs to come in in case somebody gets hurt or fouls out of the game. I’m not going to just play with four players or three players. I want that will to be the same thing and I want it to last the rest of your life. So we want to have a substitute, it could be one, it could be two, that are available to come in and play the role as the primary executor if, heaven forbid, something happens to that primary executor and they can’t serve in that role prior to your passing.
Then I really want to break out that list of assets and connect it to that list of family members and heirs that comply with my goals of what I want to do, or charitable organizations, churches. It’s kind of like one of these tests you take where there’s a list of one side and a list on the other and I match up the ones that match. I draw a line. I’d love to see that thought process.
And that’s what we do when we sit down in a consult. I want my home to go to my three children equally and I want to list that out in the will. I want to state that clearly for direct distribution, specific distributions to people. I want my cars to go to my spouse, my house to go to my spouse, everything to go to my spouse. Maybe I want to give 10% to my church. You need to state that clearly as a specific distribution.
So if I’m giving everything to one person or specific things to one person, same thing here, what happens if that person predeceases me? If that person dies before I do or simultaneously with me, to whom does that asset go, or all the assets? Maybe I want to say everything to my spouse first, and then if my spouse predeceases me, everything equally to my children. I want to account for those things. I want to state those things in my will.
And then I will tell you, in my head, I’m running through our wills, and we have multiple sections. We will have what’s called a residuary. The residuary is, as I like to call it, the trash can or clean-up clause. It’s after all the specific distributions are given, what happens to anything else that we didn’t specifically describe? What if there were some other assets we forgot about that pop up that needed to be transferred? The residuary cleans that up. It might say, “Hey, anything else that’s left over to my spouse if she survives me. And then in the alternative, if she predeceases, to my children equally.”
Then I will have multiple other sections. I have a definition section in our wills that define all the legal terms we use. We do that so not only the client knows what the terms mean, but it’s less about that and more so the courts and any attorneys that might be involved in the probate of that will know what the terms mean. We don’t want another attorney coming in and arguing or questioning what we mean by the terms we use. We want to make sure that we give powers to the executor, kind of like a power of attorney, but after you pass away, to do anything with the money and property that you had during your life to get it where it needs to go under your will.
And I like an administrative section that tells the clerks and the courts how to set up the will. For instance, does your executor need to post a bond to cover all the assets in your state, or do you trust that person and you wave bond right in the will?
And last but not least, and where I see people make the most mistakes and where wills are rejected from the courts as non-probatable, they can’t go through that probate process to pass assets because they weren’t witnessed and signed correctly. To be a valid will in North Carolina it should be witnessed by two witnesses. Those witnesses need to be disinterested parties. That means they can’t be heirs or beneficiaries that take under the will.
So I’ve seen horror stories firsthand where people cut themselves out of the will because they witnessed a will. You can’t recover if you’re witness. You can’t take under a will if your witness.
And then last but not least, of course the testator, the person writing the will, needs to sign the will in front of the witnesses. But to be self-proving, all our wills are self-proving, they have attached a self-proving affidavit. To be self-proving so that at the time the will is probated through the courts if you pass, the witnesses don’t have to be called in or sign affidavits at that time, because what happens if your witnesses predecease you? This would present a situation where the will may be unable to pass through probate and pass assets. In order for a will to be self-proving, it has to have certain language within the self-proving affidavit that has to be properly witnessed and notarized.
The testator, the person making the will name, and the two witnesses’ names need to be notarized by a notary public officially. In addition, it has to have self-proving language that the person is of sound mind and body, over the age of 18, and executing their wishes.
I would caution you, again, wills are complicated. There is no such thing as a simple will. So be careful. Proceed with caution in this area, but certainly give it the right amount of thought. And it starts with those lists, assets, the people you want to inherit those assets, and goals, which I think those are akin to the same thing, the goals and the people you want to receive those assets. Match those up and you’ll be well on your way to writing your will and to working with a professional and estate planning or elder law attorney to make that a reality and put a tailored plan into play.
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If we can help you or your family write a will, please give us a call, 704-749-9244, or go online to mcelderlaw.com. Right now, I’m offering free consultations to meet with you and your family to write your wills and put in play your estate plan. That’s about a $300 value for an hour or more of our time to freely sit with you and discuss with a professional estate planning elder law attorney and get really clear on how to take care of your hard-earned money and property and create your legacy for your family, your children and grandchildren. You can also schedule that free consult right online at mcelderlaw.com.
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Greg McIntyre Elder Law Attorney
written by:
Greg McIntyre
Elder Law Attorney
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greg@mcelderlaw.com
