A will is a fundamental legal document that dictates how your assets should be distributed after you pass away.
How a Will Fits Into Your Estate Plan
It’s important to understand that a will only controls “probate assets”. Probate assets only include property that is titled solely in your individual name at the time of your death and that does not have a designated beneficiary. It does not control assets that pass automatically, such as jointly owned real estate, life insurance policies, or retirement accounts. These are considered will substitutes, and they will override conflicting provisions within your will.
In a comprehensive estate plan, your will can act as a “safety net” to catch any leftover assets you may have forgotten to retitle, or assign a beneficiary to, during your lifetime. If you use a revocable living trust as the centerpiece of your estate plan, you will typically use a specialized “pour-over” will. This type of will simply catches those leftover individual assets and “pours” them into your trust so they can be managed and distributed privately according to the trust’s rules.
Additionally, your will is the document where you legally nominate an executor to handle your affairs and appoint guardians to care for any minor children.
Basic Legal Requirements (Rhode Island)
To execute a valid will in Rhode Island, you must meet the following strict statutory requirements:
Age and Mental Capacity: You must be at least 18 years old and of “sane mind”. This means you understand that you are making a will, you generally know what property you own, you recognize your natural family members, and you understand how the document distributes your property.
In Writing: The will must be a written document. Rhode Island generally does not recognize oral wills or unwitnessed handwritten (holographic) wills.
Signature: You must sign the will yourself or explicitly direct someone else to sign it for you in your physical presence.
Two Disinterested Witnesses: You must sign or acknowledge your signature in the presence of at least two competent witnesses, who must also sign the document in your presence at the same time. It is crucial that these witnesses are disinterested; if a beneficiary of the will acts as a witness, their inheritance under the will becomes completely void.
Self-Proving Affidavit (Highly Recommended): While not strictly required to make the will legally valid, your will should include a notarized “self-proving affidavit” signed by you and the witnesses. This affidavit proves to the court that the will was properly executed, which saves your family the time, difficulty, and expense of trying to track down the witnesses to testify in probate court after you pass away.
If you’d like to discuss your will or related estate planning instruments, please contact me here.