Wills are a part of an estate plan that helps your money, possessions, and property pass legally to your loved ones. But do you need an attorney, or can you create your own will?
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Wills Cover Many Areas of Law
The process of creating will involves many areas of law, including:
- Real estate law (who holds the title to real estate)
- Estate tax and inheritance taxes (how to reduce taxes)
- Probate (understanding estate administration)
- Life insurance (knowing if your beneficiary designations are correct)
And your state has specific requirements for making a will valid in that state.
Can I Draft My Own Will?
Yes. You can create your own will if you follow your state laws. In fact, with online estate planning services, there are state-specific do-it-yourself options you can use to create your legal documents.
If you have a good grasp of the above concepts, then you might want to create your own will. You should also have strong knowledge of your accounts and assets, so you don’t miss anything in your will.
What Makes a Will Legal?
Your state has specific requirements for valid will in your state. For example, most states have the following requirements:
- You must be an adult. Some states have a minimum age requirement. However, state may have exceptions if the testator is in military service or married.
- You must have a sound mind. You must have testamentary capacity meaning you know you are making a will, you know what assets you have, and you know your natural beneficiaries, meaning your blood relations.
- The will must be in writing.
- The will must be signed and dated.
- The testator may need witnesses. In most states, you also need two witnesses to watch you sign your will. Witnesses do not need to read your will but be in your presence when you sign it. The witnesses should be “disinterested,” meaning they cannot inherit or benefit from your will. However, some states make exceptions to this rule.
Note: Holographic wills (handwritten wills) do not need a witness. However, not all states recognize holographic wills as valid.
Do I Need a Notary for Will Signing?
Not necessarily. You do not need a notary for your will. Many states allow a person to sign their will before two witnesses instead of having it notarized.
However, most people who write their own will want to include a “self-proving affidavit.” In this affidavit, the witnesses swear before a notary that they were in your presence when you signed the document and you intended to sign the document as your will. This document needs a notary’s signature. The benefit of the self-proving affidavit is that a probate court accepts your will as valid without requiring the witnesses to appear and testify to the validity. It speeds up the probate process.
What Information Do I Need To Make a Will?
A will can be simple or extremely complicated and detailed. There is basic information you need to start your will, such as:
- A list of your beneficiaries
- A list of what assets, real estate, and personal property you have (for example, cars, boats, houses, jewelry, artwork, furniture)
- Who will handle your estate (the personal representative or executor)
- Who will serve as your minor children’s guardian, if necessary
Other assets or property that do not go into the will include:
- Bank accounts
- Retirement accounts
- Life insurance proceeds
Those assets pass outside of the will and go to named beneficiaries. It is always a good idea to double-check your beneficiary designations and make sure you have named a backup beneficiary if your first choice has died before you. Any assets lacking a beneficiary designation become part of your probate estate.
You can also get planning information and legal document inventory worksheets in DIY form packages.
When To Use a Lawyer For a Will
Anyone with complex estates or significant assets may want to use an estate planning lawyer. On average, an attorney will take 1-10 hours to create a will at their hourly rate. Many others charge a flat fee. However, having a law firm handle the process for you is often worth the money and the time saved if you have a large estate.
You may especially want to use a lawyer if you:
- You think someone will contest your estate in probate court
- You want to make provisions for minor children, stepchildren, special needs children, or blended families
- You are financially supporting other family members
- You need appraisals and records of complex assets (for example, a business venture)
- You have large sums of money or multiple bank accounts
- You want to create a living trust or a revocable trust
- You want to reduce your estate for Medicaid planning or to save on estate taxes
If you have questions or your estate is more complicated, seek legal advice from an estate planning attorney.
Can I Make a Living Will for Medical and End-Of-Life Care?
Yes. A living will is a document that informs doctors of the kind of medical care you want if you are unconscious or unable to explain your choices. It is different estate planning document than a last will and testament because it protects you during your life. You may create a living will detailing what medical procedures to provide or withhold and also name a health care agent in a health care directive or a health care power of attorney.
Some states have a statutory living will or advance medical directives. And you can DIY a living will if you know who you want to make your medical decisions and what medical procedures you want or don’t want if you have a terminal or end-state illness.
Is a DIY Will Right For You?
The choice is up you. Online wills save time and money for simple wills as long as you meet the legal requirements of creating a valid will. Writing a will attorney using FindLaw’s state-specific do-it-yourself forms and templates can help make the process easier.
