Making a Will
Your will, sometimes referred to as your "last will and testament," is the cornerstone of your estate plan. It is an important document that expresses your final wishes as to how your assets will be distributed and your responsibilities satisfied when you die.
The person who makes a will is legally known as a "testator." The testator can give instructions on how their property should be distributed and to whom. They may also name a guardian to care for their minor children and other dependents in the event of an untimely death.
The process of creating and carrying out a will can generate many questions. What kind of instructions may be included? Who carries them out? What makes a will valid? What kind of property can be distributed and how? This section provides some answers to common questions.
Choosing a Personal Representative
One of the most important people addressed in a will is the personal representative (in some places they are called "executors". Once the testator dies and the will becomes active, the personal representative is entrusted with carrying out the testator's instructions. Typically, they also manage the estate's day-to-day affairs, including making sure the estate's bills are paid, until it is wrapped up.
This is a position of great trust and responsibility. Therefore, your personal representative should be chosen carefully to ensure their dependability and competence. Further, the personal representative should ideally be someone that your family members and heirs can work with. This helps avoid unnecessary conflict.
Note, that custody of the original will can be very important in settling disputes. In particular, it is important that the personal representative have access to the document. This can be ensured by storing the original will in a safe place (e.g., with the drafting attorney or in a safe deposit box).
Distributing Assets and Other Property
When we think of wills, the distribution of a person's assets and other property at death is typically the first thing that springs to mind. The distribution of things like bank accounts, retirement accounts, credit cards, real estate, personal property, and investments is certainly an important component of a will. Failure to provide instructions in a will means that, as a default, these things will be divided according to state laws of “intestate succession."
The rules governing your will are sometimes not as straightforward as you may think. As you begin to plan your will, remember that some forms of property cannot be included. For example, you cannot distribute money that's held in a joint account. Similarly, life insurance benefits generally cannot be included in a will, as these payments automatically go to the insurance policy's named beneficiary.
Naming a Guardian for Minor Children
A very important benefit of creating a will is the ability to name a legal guardian to care for your minor children and other dependents in the event of your death. By naming a trusted guardian for your children, you will help ensure that they are well cared for in a worst-case scenario.
What Makes a Valid Will?
In general, the requirements for a "valid" will are meant to ensure that you are not being tricked or coerced into signing the final document. In other words, they are meant to ensure that the formal legal document is a true reflection of your own will, hence the name.
There are two common safeguards to ensure this. First, you must be of "sound mind" when you create and sign your will. Second, at least two people are required to serve as witnesses when you sign your will.
Additional requirements vary depending on where you are, so it's best to speak with an estate planning attorney if you have specific questions about your state's procedures and requirements for wills. For example, a notary may serve as an additional safeguard, though notarization is not required in most jurisdictions.
If your will violates a law — such as a law that requires you to name your children as heirs — portions of your will may be disregarded. In some cases, a violation may invalidate the entire document.
Need Help Drafting Your Will?
Wills are one of the most iconic documents associated with lawyers. As a result, many people are surprised that they can create a will online — and even many accompanying estate planning documents — without the aid of an attorney.
If your estate is relatively simple, you may bypass a visit to a law firm and instead draft your own will online using our customizable templates. Drafting a simple will using our do-it-yourself estate planning tools can save you both time and money.
However, if you have questions, or if your estate is more complex, you may still want to seek legal advice from an estate planning lawyer.
Can I Solve This on My Own or Do I Need an Attorney?
- DIY is possible in some simple cases
- Cases with complex assets or families are rarely cut and dry
- Complex cases may need tailored advice from a lawyer
- Many attorneys offer free consultations