For most people, a Last Will and Testament is the first estate planning document they create. While you may eventually add numerous additional estate planning documents to your plan, that initial Will may serve as the foundation upon which your expanded estate plan is built. Knowing that it then becomes even more important to have a clear understanding of the Will you create. Toward that end, a Grand Forks attorney at German Law has created a North Dakota Last Will and Testament guide.
What Is a Last Will and Testament?
A Last Will and Testament is a legal document that provides instructions to your Executor, beneficiaries, heirs, and others about how you want your estate assets handled after you are gone. When a Will is properly drafted and executed, the terms of the Will are legally binding. One important reason to execute a Will is to prevent leaving behind an “intestate” estate. If you die intestate the North Dakota intestate succession laws will dictate how your estate assets are distributed. Typically, only a spouse and/or close relatives (child, parents, siblings) inherit from an intestate estate. Most importantly, when you die intestate, you give up the opportunity to decide who inherits from your estate.
What Is Required by Law to Create a Will in North Dakota?
State law governs the validity of a Last Will and Testament. In the State of North Dakota, for a Will to be valid the following requirements must be met:
- The Testator (creator) must be over 18 years of age.
- The Testator must be a sound mind.
- The Will must be in writing.
- The Will must be signed by the Testator or in the Testator’s name by some other individual in the Testator’s conscious presence and by the Testator’s direction.
- The Will must be:
- Signed by at least two individuals, each of whom signed within a reasonable time after witnessing either the signing of the Will or the Testator’s acknowledgment of that signature or acknowledgment of the Will OR
- Acknowledged by the Testator before a notary public or other individual authorized by law to take acknowledgments.
What Is the Purpose of the Various Parts of a Will?
When you read the draft of your Last Will and Testament prepared by your estate planning attorney, some of the language may sound archaic. That’s because the basic form (and language) used to create a Last Will and Testament today has been around for hundreds of years. While your Will should be uniquely tailored to suit your needs and goals, it helps to understand the purpose of the most common parts of the average Will, such as:
- Declaration or Preamble. The first section in a Last Will and Testament is usually called the “Preamble” or “Declaration.” On this section, you will identify yourself and state your full legal name, birthday, and address. This ensures that it is clear that the Will is your Last Will and Testament. Along with identifying you, this section may include verbiage that states that you are old enough and that you have the capacity required to create a Will (that you are of “sound mind”). There is also typically a sentence or two stating that it is your intention to create your final Will and that the execution of the document should revoke any previously executed Wills.
- Identification of Heirs and Beneficiaries. This section will usually list at least your close legal heirs, such as a spouse, child, parent, or sibling. These people would inherit from your estate if you died intestate. Listing your heirs does not mean they will inherit from your estate though. The purpose of listing your heirs, however, is to make it clear that you understand who they are (something that could come up if anyone challenges the validity of your Will down the road). This is also where you will make it clear that you want to disinherit an heir, if applicable. Simply leaving an heir out of your Will is not the best way to disinherit that heir. In fact, that often leads to a claim that the Testator was not of sound mind and “forgot” the heir. Naming an heir and explicitly stating that he/she takes nothing from your estate is the better way to accomplish that goal. In this section you will also name the beneficiaries of your estate. A beneficiary may also be a legal heir, but they are not one and the same. Remember, an heir is someone who inherits by law if you die intestate while a beneficiary is someone who you choose to inherit from your estate.
- Appointment of Executor. Another advantage to executing a Last Will and Testament is that you are able to name someone to be the Executor of your estate. Your Executor oversees the probate process that occurs after you pass away. The right Executor will help your estate move expeditiously and efficiently through the legal process of probate whereas the wrong Executor could cause your estate to spend unnecessary time and money during probate.
- Assets and Bequests. Just as you named your legal heirs in a previous section, you should identify your probate assets with specificity in this section. Again, making it clear that you understood the value of your estate at the time you signed your Will is extremely helpful if someone challenges your Will after you are gone. Along with identifying your assets, you will dictate how those assets are to be handled in this section. Bequests (gifts) are made to beneficiaries as specific or general bequests. For example, you might gift your ceramic turtle collection to your grand–niece Sophia (a specific bequest) or you might gift 25 percent of your estate to each of your four children (general bequest).
- Execution. The final section is where you execute your Last Will and Testament. Along with your signature, there will be a place for witnesses to sign and/or for a Notary Public to witness your signature. Do not sign your Will until your attorney informs you that you should. This ensures that your Will is properly “witnessed”.
Are You Ready to Create Your North Dakota Will?
Please join us for an upcoming FREE seminar. If you are ready to get started creating your North Dakota Last Will and Testament, contact the Grand Forks estate planning attorneys at German Law by calling 701-738-0060 to schedule an appointment.
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