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Estate Planning Considerations: Requisite Formalities

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Fancy estate planning pen on notebook

Estate planning documents express your wishes in the event of your disability or death. However, estate planning documents must follow certain formalities to be legally enforceable. If your estate planning documents lack these formalities, they may not be enforceable, which could be disastrous for your loved ones and beneficiaries.

Iowa Requirements

Keep in mind estate planning requirements vary state by state. Let’s look at a Last Will and Testament, just one of six “must have” estate planning documents every Iowan needs. For a will to be valid in Iowa, it must comply with these requirements:

  • Maker (testator) must be at least 18 years of age or married;
  • Maker must be of “sound mind”;
  • Will must be written;
  • Will must be signed by maker in presence of at least two competent witnesses, at least 16 years of age, who also sign in presence of maker and each other; and,
  • Maker must tell the witnesses it is his or her will.

Formalities Matter

It is important to have a reputable legal professional handle your estate planning. If you don’t, you risk missing one or more legal formalities, which might make your entire estate plan worthless. For this reason, avoid creating a will, or for that matter any estate planning documents, through an online service.

Starting an estate plan may seem like a daunting chore, but it doesn’t have to be. The easiest place to start is with my free, no-obligation Estate Plan Questionnaire. Of course, you may always reach out to me at any time with any questions or concerns.

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Great Goals: Make an Ethical Will

ethical will

If you’ve visited my blog before you know I can talk often and always about the importance for all Iowans to make a will as a part of a complete estate plan. I highly recommend enlisting an estate planner with good recommendations to draft your individualized estate plan. But even the best estate planner cannot write another type of will you should deeply consider—an ethical will. This is a document that’s best written by the person who knows you the best . . . you.

What is an Ethical Will?

An ethical will isn’t a legal document like a last will and testament or a living trust. An ethical will won’t transfer assets won’t be admitted to a probate court to evidence testator intent. But an ethical will can be extremely meaningful and useful to the loved ones you leave behind. It’s a document where you can transfer immaterial assets—think words of wisdom, lessons learned, stories, documentation of heritage, and values.

What We Talk About When We Talk About Estate Planning

Let me be clear, an ethical will certainly does not replace the need for a legal will, but it serves as a compliment or an addition. Rather, an ethical will is the place you can provide explanations for what decisions you make in your estate plan if you so choose. For instance, if you think there will hurt feelings or confusion if a certain family member is selected as the executor of your will, you could articulate your reasoning in an ethical will.

There’s no hard and fast definition for what should go in your ethical will. Unlike a last will and testament, there are no specific formalities. You may consider your ethical will as a collection of documents like journal entries, letters to loved ones, or even just your favorite quotes you live by. Curious about how to get started compiling an ethical will? I would recommend thinking about last words and a lasting legacy. What do you want to make sure gets said, even after you’re gone? For my own ethical will, I would start by just writing a letter to my wife.

How a Letter of Instruction Works with your Estate Plan

One question I often get is where to store estate planning documents? For your ethical will, I recommend storing a physical and digital copy with your other estate planning documents or letter of instruction (if the estate planning documents are only accessible by certain executors). The most important thing will be that the people you want to have access to the ethical will do indeed have access to it.

Estate Planning: On Valentine’s Day Skip the Heart Box & Go for Secure Storage

Need an estate plan? There’s no day like the day for investing a roadmap for your loved ones after you pass. An estate plan can save money, time, bureaucratic red tape, and a whole lot of heartache for your beneficiaries. Don’t hesitate to contact me with any questions about estate planning via email (gordon@gordonfischerlawfirm.com) or by phone (515-371-6077).

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The Scary Tale of What Makes a Will Valid

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Halloween pumpkin

What makes a will valid? To begin, you are asking the entirely wrong question! [Cue evil sounding mwahahahaha.]

You must ask a more specific question what makes a will valid in Iowa. After all, every state can and does have different laws for a will’s validity, as well as for probate, trusts, and so on.

Iowa law has several requirements (sometimes called formalities) which must be present for a will to be legal and binding. If you miss even one formality–yes, even one!–you run the risk of your will being declared “dead.” Forever dead and invalid…which sounds like a nightmare for your loved ones.

In Writing (Can Be Blood or Ink)

ink and paper

Iowa law requires a will to be in writing. That means any oral statement of the decedent doesn’t count. This is true even if the oral statement(s) relate(s) directly to naming people who should inherit specific property. (Note that there’s a slight, teeny tiny exception to this for gifts causa mortis. But, these are super specific, situational, limited, and rare.)

Even a statement about passing of property recorded by audio or video cannot constitute a valid will.

Testatrix or Treat?

The person making the will must sign it, or direct some other person to sign the will in his or her presence. Lawyers call the person who makes the will either a testator (male) or testatrix (female).

Two Witnesses to Tell the Tale

Two witnesses to the will’s signing are also required. The person making the will, in the presence of the two people acting as witnesses, must declare the document is his/her will and request the two people to sign the document as witnesses. Then the witnesses must sign in the presence of each other, and in the presence of the testator/testatrix.

two people signing

Bearing Witness

There are also standards for being a qualified witness. A witness must be at least 16 years old and be mentally competent. A person who receives property under terms of the will may be a witness, but that person will have to forfeit any amount in excess of what s/he would receive if there were no will.

Are You Competent?

A will is valid only if the person making the will has sufficient competency at the time the will is made. In this situation, “competency” has two prongs: the testator must be of full age AND sound mind.

Full age simply means legal majority, which is age 18 (or 17 and married).

Is your mind sound?

All I can imagine with the phrase “sound mind” is the mad scientist saying “brainssss, brainsss!” But, is “sound mind” a real thing? Yes!

glass brain

A testator must indeed be of sound mind. The testator/testatrix has sufficient mental capacity if s/he:

  1. understands the nature of the instrument s/he is executing;
  2. knows and understands the nature and extent of his or her property;
  3. remembers the natural objects of his or her bounty; and
  4. knows the distribution s/he wants to make.

If s/he is unable to meet any one of these tests she cannot make a valid will. The mental capacity must exist at the actual time of the making of the will.

Did you say “natural objects of bounty?”

The natural objects of his or her bounty is a fancy legal phrase. Essentially this refers to a spouse and children, if any, or other close family members; the maker of the will should generally know and recognize his or her natural heirs.

Low Standards

This test of mental capacity is not a particularly high standard to meet. The Iowa Supreme Court declared:

“Ability to transact business, generally, is not essential to testamentary capacity. Advanced age, failure of memory, senile dementia not shown to render the testatrix of insufficient mental capacity to understand the nature of the act, to recollect the extent of her property and the natural objects of her bounty and their claims upon her, and to comprehend the manner in which she wishes her property distributed, childishness, mental weakness, and old age are not, of themselves, sufficient to deprive her of testamentary capacity.” Walters v. Heaton, 271 N.W. 310, 313 (Iowa 1937). (Note that the court’s decision was related to a female, hence the she/her, but, this standard undoubtedly applies to all will-makers in Iowa!)

Are you frightened to death of making a mistake with your will? Never fear! A qualified attorney can help guide you around the sticky spiderwebs and swamps of estate law. Email me at gordon@gordonfischerlawfirm.com or call me on my cell at 515-371-6077. I’d be happy to offer you a one-hour free consultation!

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