Our attorneys help clients in Valparaiso, Indiana draft last will and testament paperwork.
Why Would Someone Want a Last Will & Testament in Indiana?
A last will and testament is a document that sets the orderly distribution of a person’s estate at the time of their death. Many folks are confused about wills and the authority that is conveyed through the will.
For the terms of the will to come into play, the property of the decedent (person who passed away) must be in the decedent’s name. For instance, if the decedent had bank account at Centier bank or Horizon bank in Valpo, the money in the bank account will only be distributed under the terms of the last will and testament if the account was only in the decedent’s name. If the account had a co-owner or a pay on death beneficiary, then the money in the account is not an asset of the estate and the terms of the will have no bearing on the account.
How do you make a last will & testament?
There are a number of requirements or formalities for a last will and testament in Valpo:
- The will must be in writing; you cannot have an oral will. The last will and testament can be handwritten if it meets the other formalities.
- The person making this will must be at least 18-years old and be in their right mind and prepare the last will and testament voluntarily. Legally speaking this means that the person making the will had the legal or testamentary capacity.
- There are two witnesses to the signing of the will. These folks can also attest that the person making the will was in their right mind, knew what they were doing, and no one forced them to prepare the document.
In conclusion, if the person making the will puts his/her wishes in writing, knows what they are doing, was not forced into making the will, and there are two witnesses, you have a valid last will and testament in Indiana.
What Sort of Things do You Want to Have in Your Will?
There are no specific requirements but here a few areas that you probably want to cover in your last will and testament.
- The identity of family members and/or friends that you intend to leave something to.
- If you are specifically going to leave someone out of the will, it is a good idea to identify that person.
- The person who is going to be in charge of getting your stuff together and distributing the assets in your estate. This person is called the personal representative or executor.
- If you are going to leave something special to a person, you will want to identify the “something” and the person that will be getting the property. This is called a specific bequest. The clause in the last will and testament will say something like this: “I leave my 1969 Camero to my grandson Charles” or “I leave my Rolex presidential to my daughter Heather.”
- How you want the assets of your estate split up between your heirs or beneficiaries. For example, the clause in your last will and testament may say something like this. “ I leave the remainder of my estate to my wife, if my wife predeceases me, I leave the remainder of my estate to my children equally.”
There are a number of other specific clauses or statements that you may want to include in your last will and testament. The specific terms will be based on your specific intentions and wishes.
Do You Need a Lawyer to Prepare Your Last Will & Testament?
The simple answer is no, if the will meets the legal requirements of a valid Last Will & Testament under Indiana law. However, each family is different and may have different issues and needs. A form Last Will & Testament may work for some family situations but not all family situations.
What is the Difference Between a Power of Attorney and Will?
Many people are confused about power of attorneys and wills. The typical phone call that I will receive, will be something like this: “I went to my mom’s bank after she passed away and I couldn’t access her money to pay for the funeral, I’m her power of attorney, don’t I have the right to access the account?”
The answer is to the question is that you did have the right to access your Mom’s bank account while she was living, but at the moment she passed away the power of attorney is revoked as a matter of law. A power of attorney is valid only when the principal (Mom) is alive. The simplest way to avoid this problem is if mom had a pay on death designation on her bank account.
Now if the caller thinks that they will get access to the money in the bank by bringing over a copy of the will showing that she is entitled to bank account, there is no legal mechanism for the bank to turn the proceeds over immediately. If Mom’s estate has less than $50,000 after 45-days, the caller would be able to access the funds by Indiana’s summary estate procedure. If Mom’s estate has a value above $50,000, the last will & testament will need to be accepted by the probate court, and the caller would have to be appointed personal representative by the court, and then the caller would have access to the bank funds.
The last will & testament is an important estate planning tool whether you have a ton of assets or not, if you would like to discuss the best way a will would assist your goals, contact Guy DiMartino Law’s Valparaiso office.