Wills, Wishes, and Widows

“To my first wife Sue, whom I always promised to mention in my will, “Hello Sue!”

- Anthony Scott, in his last will and testament

According to Merriam-Webster, a will is “a written instrument, legally executed, by which a person makes disposition of his or her estate to take effect after [his or her] death.” That’s the end of this blog. Check in next week for more exciting information.

Oh. You’re still here? You mean a basic definition wasn’t what you came here for? I see. Well, let’s explore that definition a little more.

“A Written Instrument”

A will must be a written document. This includes handwritten, typewritten, and printed formats. Video wills and audio wills are not valid in the state of Iowa. Yes, this means that episode of Law & Order got the law part wrong. No, you can’t believe everything you see in the movies.

A video will might be allowed if the will is also in writing. You could use a video will to read the text of your written will, allowing your heirs to see you addressing them specifically. This could benefit the estate in several ways: it could provide additional evidence supporting the will in the event someone contests it, discourage the heirs from fighting amongst themselves, and make it easier to interpret the language in the will according to your wishes.

Remember, though: a video will, on its own, is not valid in Iowa. There must be a written instrument.

“Legally Executed”

This is the one that’s easy to miss. Your will must be signed by you and two witnesses in each other’s presence. I can’t stress this one enough. You and the witnesses have to sign while in the same room. Each witness needs to be present for your signature as well as the other witness’s signature, and you must be present for both witnesses’ signatures.

Some states allow what is called a “holographic will.” A holographic will is one that is hand written by the deceased person (testator) and signed. A true holographic will is not signed by witnesses. This is not allowed in Iowa. If you hand-write your will, you still need to have it legally executed with the signatures of two witnesses.

“Disposition of [Your] Estate”

This is the one everybody knows. You make a will to make sure your property goes where you want it to go after you go. Seems pretty simple: want to give money to your kids/friends/charity/pet? Put ‘em in your will.

You can do more than that, though. Your will allows you to decide who is going to manage your estate after you die (the executor). It allows you to appoint a guardian and/or trustee for your minor children and/or their inheritance.  You can specifically disinherit someone in your will. It is, truly, a pretty robust instrument. 

Just for kicks, check out the list of strange and silly wills at Purple Slinky to see some of the crazy things people have tried to do with their wills.

“After [Your] Death”

A will does absolutely nothing until you die. Well, it takes up space in your attorney’s fire safe. But, other than that, nothing. A will has no effect until your death. The people listed in your will don’t have any claim to their expected inheritance. Your executor has no authority. Your kids’ guardian has nothing to guard. In order for any of the terms in your will to take effect, you have to kick the bucket.

This does not mean that you can’t give your estate away before you die. You can give some measure of control over your estate to your heirs through life estates, joint tenancy, and even outright gifting. These types of transactions are tools used in estate planning and can remove items from your estate to help reduce your exposure to the estate tax. But they are not a will.

I mentioned earlier that a will is a robust instrument. While that's true, there are a lot of things that a will cannot do. That's why an estate plan has six essential elements instead of one. Next time, we'll talk about powers of attorney and why you need them. Until then, how about a joke:

-----------------

Lawyer Joke of the Week:

Q: Why does California have the most attorneys and New Jersey have the most toxic waste dumps?
A: New Jersey got first pick.

-----------------