A will is a legal document that details your wishes in any circumstances where you may become disabled or deceased. A will specifies the distribution of your possessions and property and the care of any underage children. A proper will is very detailed and thorough. To ensure your will is all-inclusive, it should be prepared by a professional estate attorney and properly witnessed.
Failure to prepare a will typically leaves decisions about your estate in the hands of a probate court. At that time, your heirs will be forced to spend additional time, money, and energy to settle your estate.
Why You Need a Will
People commonly think that only the wealthy need wills. However, there are many excellent reasons to have a will.
- A will allows you to be precise about who gets what and how much.
- A will allows you to keep your assets out of the hands of people you don’t want to have them.
- A will allows you to identify who should care for your child or children. If you don’t have a will, the courts will decide who will do this important job.
- A will provides your heir(s) a faster and easier time getting access to your assets. Without a will, the probate court will decide and it may take a long time to resolve.
- A will means you can save your estate on taxes. A will can also include charitable donations, which also offsets the estate tax.
Types of Wills
Testamentary Will – Signed in front of witnesses.
To best ensure that your wishes will be followed, consider a testamentary will. Testamentary wills are extremely common. Once your will is prepared, you sign it in front of witnesses. It is insurance against challenges..
Holographic Wills – When witnesses are unavailable.
Holographic wills are wills where there are no witnesses that sign the will. These wills are common when time is short and/or no witnesses are available. The term holographic derives from the word holograph which means handwritten by one’s own hand. The absence of witnesses can lead to challenges by heirs.
Oral wills – When paper is unavailable.
Oral wills can be easily challenged. Oral wills are created when the testator expresses his/her wishes verbally. These are not widely recognized by courts and are usually only done in the most dire of circumstances. It is highly recommended to avoid this type of will. If there is some type of accident where there is no time, be sure to have as many witnesses as possible and even use a cell phone to record the will.
Pour-over Wills – Used in conjunction with a trust.
Mutual Wills – Executed by couples.
Mutual Wills are common in marriages. If one spouse dies, the remaining spouse is bound by the terms of the Mutual Will. Mutual Wills can also protect children in cases of a spouse becoming remarried. It prevents the new spouse from inheriting any/all specified property.
What is Included in a Will?
A will includes instructions on what happens to your belongings. This includes money, real estate and heirlooms. It also includes investments, businesses, and other assets. A will includes any charities that will benefit. A will does not include life insurance policies. Those have their own beneficiaries spelled out, assuming these are still alive. in those situations, a will should mention what to do in those cases. A will also specifies the new guardian of any minor children. Wills can also specify what happens to your body in the event of your death.
What Happens if I Don’t Have a Will?
If you die intestate—that is, without a will—the state oversees the dispensation of your assets, which it will typically distribute according to a set formula.
Because of the elective-share and community property provisions mentioned above, the formula often results in half of your estate going to your spouse and the other half going to your children. Such a scenario sometimes results in the sale of the family home or other assets, which can negatively affect a surviving spouse who may have been counting on the bulk of your assets to maintain his or her standard of living.
Further complications may ensue if your children are minors, as the court will appoint a representative to look after their interests.
Dying intestate may have tax consequences, too, since a properly prepared will can reduce the estate tax liability. As of 2021, a U.S. estate tax return must be filed on individual estates valued at $11,700,000 or more.2 No federal estate tax is due if the estate is worth less than that amount.
Getting Started on Your Will
To prepare a will, begin by compiling a list of your assets and debts. Be sure to include the contents of safe deposit boxes, family heirlooms, and other assets that you wish to transfer to a particular person or entity.
If you wish to leave certain personal property to specific heirs, begin a list of those allocations for eventual inclusion in your will. In addition, you can identify the recipients of particular assets in a separate document called a letter of instruction, which is kept with the will. However, if you include assignments only within this letter, check that the document is legally binding where you live; some states do not recognize them.
The letter of instruction can be written more informally than the will. It can also include specifics that will help your executor settle your estate, including account numbers, passwords, and even burial instructions. Other addenda to the will, such as power of attorney, a medical directive, or a living will, can direct the court on how to handle matters if a person becomes physically or mentally incapacitated.
If both you and your spouse lack wills, you might be tempted to prepare a single document that covers you both. Resist the temptation. Estate planners almost universally advise against joint wills, and some states don’t even recognize them. Separate wills make more sense, even if your will and that of your spouse may end up looking remarkably similar. (As noted above, a joint will is not to be confused with a mutual will.)
How to Prepare and Validate Your Will
You don’t necessarily need professional help to prepare a valid will. If you are comfortable taking care of the task on your own, a number of software programs are available to assist you, as are a variety of DIY websites. Once you’ve drafted the document, it needs to be witnessed, usually by two adults of sound mind who know you well.
Any person may act as a witness to your will, but it’s best to pick what’s known as a disinterested witness—someone who isn’t a beneficiary and has no financial or personal stake in your choices. Some states require two or more witnesses. If a lawyer prepared the will, they shouldn’t serve as one of the witnesses.
In some states a will must also be notarized, so check the rules where you live. Even if that formality isn’t required, you might consider having your witnesses complete what’s known as a self-proving affidavit. Signed in the presence of a notary, the document may facilitate the probate process by reducing the likelihood witnesses will be called into court to validate their signatures and the authenticity of the will.
Choosing an Executor for Your Will
You’ll need to name a still-living person as the executor of the estate. That person, often a spouse, adult child, or another trusted friend or relative, is responsible for administering the estate. You can also name joint executors, such as your spouse or partner and your attorney.
The probate court usually supervises the executor to ensure that he or she carries out the wishes specified in the will. Still, if your affairs are complicated, it might make more sense to name an attorney or someone with legal and financial expertise.
The case for engaging an attorney is stronger still if your estate is substantial (ranging in the millions of dollars) or your situation is legally complex. If so, be sure to work with someone who is familiar with your state’s laws and has extensive experience with writing wills. Your state bar association may be able to help you locate a suitable attorney.
One of the most important things your will can do is empower your executor to pay your bills and deal with debt collectors. Make sure the wording of the will allows for this and also gives your executor leeway to take care of any related issues that aren’t specifically outlined in your will.
Where to Keep a Will
A probate court usually requires access to your original will before it can process your estate. It’s important, then, to keep the document where it is safe and yet accessible. Avoid storing it in a bank safety deposit box or in any other location where your family may need a court order in order to gain access. A waterproof and fireproof safe in your house is a good alternative.
Then let at least your executor know where the original will is stored, along with needed information such as the password for the safe. In addition, it’s wise to give duplicate signed copies to the executor, and to your attorney if you have one. The signed copies can be used to establish your intentions in case the original is destroyed or lost. However, the absence of an original will can complicate matters, and without it, there’s no guarantee that your estate will be settled as you’d hoped. So store the document with care.
How to Change a Will
It’s possible that your will may never need to be updated. Or, you may choose to update it regularly. Remember, the only version of your will that matters is the most current valid one in existence at the time of your death.
A good rule of thumb: Review your will every two or three years. You may also want to revisit it at pivotal moments in your life, such as marriage, divorce, the birth of a child, the death of a beneficiary or executor, a significant purchase or inheritance, and so on. Your kids probably won’t need guardians named in a will after they’re adults, for example, but you might still need to name guardians for disabled dependents.
Changing your will is easy. You simply write a new will to replace the old one or make an addition using an amendment known as a codicil. Because of the serious nature of codicils and their power to change the entire will, two witnesses are usually required to sign when a codicil is added, much like when the original will was created. Some states, however, have loosened the legal regulations surrounding codicils and now allow for them to be notarized at a public notary.
Ideally, you want to make any changes when you are of sound mind and in good health. This limits the likelihood that your wishes can be successfully challenged and avoids decisions made in haste or under intense emotional pressure.