A last will and testament (also called a “will”) is one of the most important documents you will ever create. A will helps your family members understand your final wishes for the care of your children and how to distribute your assets, real estate, and personal property.
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Benefits of a Will
If you have a will, your personal representative or executor follows your instructions for distributing your estate. It protects your loved ones, especially if you have minor children.
A Will Speeds Up Probate
If you die intestate (meaning without a will) a probate court will divide your assets according to state default rules based on your living blood relatives. The court also must decide who gets custody of your minor children. Probate is complicated and time-consuming — the probate process can take up to two years.
A Will Follows Your Wishes
The probate court follows state intestacy laws if you do not make a will. So your estate may go to a family member you don’t want to inherit. For example, if you are single, have no children, and die without a will, your estate goes to your parents. But what if your single mother raised you and you had no contact with your father?
A Will Settles Disputes
A will often ease the transition for survivors by transferring property quickly and without drama. Siblings can’t fight over what “Mom would have wanted” if Mom spelled it out in her will.
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Write a Valid Will
Follow the laws of your state to ensure your will is valid. Formal will requirements for vary from state to state. The person writing the will (called the “testator”) must be an adult of “sound mind.” A sound mind means the testator must have the mental capacity to understand they are making a will, what assets they have to give, and who are their natural beneficiaries.
In addition, usually you must sign the will in the presence of witnesses. Check your state’s laws for witness requirements and if a notary is necessary. Some states allow a will made in the testator’s own handwriting (called a holographic will). However, a better and more enforceable option is to use a template or typed document.
If you are unsure about your state’s legal requirements for a valid will, Trust & Will can help you get started. Check out Trust & Will’s easy-to-use state-specific forms for your last will and testament.
Provisions To Include — And Avoid in Your Will
Two essential provisions to include in your will are nominating an “executor” to serve as the personal representative of your estate. and choosing a guardian if you have minor children. It is a good idea also to name a backup executor and guardian if your first choice is unable or unwilling to serve.
Executor or Personal Representative
An executor carries out your wishes after you have passed, so choose your representative thoughtfully. The executor’s duties include inventorying your assets, collecting debts, filling out paperwork, and more. Advise your chosen representative of their responsibilities in advance to ensure they are willing to undertake these duties.
If you have minor and dependent children, you will also want to name a guardian for them in your will. If you do not name a guardian, a court may appoint someone who is not necessarily the person you would have chosen. These are just some provisions to keep in mind when drafting your will.
What Not To Include in Your Will
There are limitations to what you can include in your will. For example, you cannot leave money for illegal activities. You should also avoid placing conditions on the inheritance of your assets, such as “to John after he marries.” Some state laws ban the disinheritance of spouses or dependent children in your will. Here are five more things not to include in your will.
In most jurisdictions, a surviving spouse has a right to a part of your estate, and you cannot give it away in a will. Check to see if you live in a “community property” state.
Assets That Operate Outside of a Will
When making a will, you give gifts to your beneficiaries, such as money, personal items, and real estate. However, some assets operate outside your will and therefore do not need to list them in your will. These include:
- Bank accounts
- Retirement accounts
- Insurance policies, including life insurance
- Stocks and bonds
- Some real estate, such as properties held in joint tenancies
These assets go to the named beneficiaries. So when opening accounts, you designate beneficiaries and backup beneficiaries. If no beneficiary is named or has died, the asset becomes part of your estate.
Changing and Revoking a Will
It is crucial to keep your will updated. As life changes, so do potential beneficiaries and heirs. If you do not update your will, it may not reflect your wishes if you get married, have a child, divorce, or have a change in financial circumstances.
For minor changes to your will, you can add a “codicil.” A codicil is like an amendment or addition to your will. You can use a codicil to revoke part of your will or add a new provision. The codicil must generally meet the other requirements for making a valid will. However, codicils can often cause confusion, so it is better to revoke your will and create a new one.
You should create a new will and revoke your old one for major life changes. You include a statement in your new will stating you revoke all wills you previously made. This statement is usually sufficient to revoke any previous will but destroy any originals and copies of your previous wills to avoid confusion. Always keep your original estate planning documents and copies in a safe place.
You can use a codicil to revoke part of your will or add a new provision.
The codicil must generally meet the other requirements for making a valid will to be valid. Keep in mind that codicils can cause confusion and should only be used in limited circumstances.
Can I DIY My Will?
Yes. It is legal to create your own will so long as you follow the legal requirements in your state. Even though a will is a critical document, it doesn’t have to be complicated. You can use a step-by-step online will service or state template if you have a simple will or small estate.
Using an online DIY will service is best when:
- You have a small or simple estate.
- You do not have a second marriage or blended family with minor children.
- You do not have a child or dependent with special needs.
However, it is best to consult an estate planning attorney to help you draft a will if you have a large estate and complex issues.
Do I Need an Attorney?
Depending on your situation, you may need to seek legal advice from an estate planning lawyer if you:
- Are uncertain about the specific requirements in your state
- Have questions on what provisions to include
- Want to know how to amend your will
- Plan to disinherit a child
- Anticipate that someone may contest your will
- Have a child or dependent with special needs
- Have concerns about estate taxes
- Want a living trust
An estate planning attorney can craft a plan to address your family dynamics and concerns.
Consider Other Estate Planning Documents
A will gives you peace of mind knowing you are protecting your loved ones, and your assets go to the beneficiaries you want. However, a will is only one piece of a comprehensive estate plan.
It may also be a good idea to make a state-specific financial power of attorney, health care power of attorney or living will when drafting your will. These legal documents help you while you are alive but incapacitated or have terminal condition or illness and you can’t speak for yourself.