A last will and testament is the primary document in your estate plan and the best way to make your afterlife wishes known to friends and family members. Without one, a court and state laws determine your property distribution and guardians for minor children—not you.
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DIY Wills vs. Attorney-Made Wills
While you may complete a do-it-yourself (DIY) will, you must also consider hiring an attorney to make sure it is enforceable. You cannot fix a will after you are dead, so make sure it works while still alive! Here is how to assess whether you can make your own will using online will forms, or whether you need a lawyer.
What Is a Last Will and Testament?
A last will and testament (most commonly called a ‘will’) indicates how to distribute your assets after you die. Your will can also address other important topics like preferences for memorial services, guardians for minor children, and caretakers for dependent children, pets, and other individuals benefiting from your support.
As the one drafting the will, you are the testator. The testator appoints an executor (also called a personal representative in some states). When you pass away, your executor files your will in state probate court and carries out your wishes. Those receiving money or property from your estate are your beneficiaries.
Do-It-Yourself vs. Lawyer: What Should You Do?
Many people throw caution to the wind and either wing it with a free will form or risk dying intestate (without a will). Intestacy statutes favor a surviving spouse or children, which does not help if you are single, live in a domestic partnership, or prefer your property transfers to a charity rather than family members. It is safe to say that everyone requires a will, even if it is just to designate guardians for minor children. Depending on your circumstances, you may create your own will, but there are times you require an estate planning attorney.
When You Can DIY
If you are a wage earner, own no business interests, and hold most of your assets jointly with a spouse or other family member, you may only require a simple will. This type of basic will is easy to compile using online forms.
However, a will is likely the most crucial document you will ever create. Even if you find the process easy, consider consulting with a lawyer so they can review the contents and make sure you did not overlook anything. While you will pay for this service (likely by the hour), you can reduce this expense by purchasing a will form and estate planning package and following instructions thoroughly before your appointment.
When You Should Lawyer Up
There are circumstances where DIY will likely fail or at least make your probate process more complex and harder on your loved ones. Consider hiring an attorney if you face any of the following:
- Your estate is subject to federal estate tax or may be worth more than $2 million at the time of your death
- There is a high chance of family conflict and a will contest
- You run your own business or own more than 50% of a business
- You are recently divorced or have children from a previous relationship
- You require special needs trusts or guardians for minor children or adult dependents
- You wish to set up a living or testamentary trust to delay payments to your children until they reach a certain age
If you have any of these tricky situations, it can cost more for an attorney to clean up your estate planning draft documents than for them to start from scratch and customize a will for you. At the least, schedule a consultation with an attorney before you begin drafting documents to make an informed decision.
Making Your Own Will
If you decide to make a will using forms, keep in mind that you must follow instructions and be thorough, so it is complete and enforceable.
Start your will drafting process by making sure you meet legal requirements. Specific requirements vary between states, but most require at least the following:
- Age and mental capacity: A testator must be at least 18 years old and of sound mind. In some states, you can make a will if you are legally emancipated or underage when you start military services. “Sound mind” indicates you are aware of the will’s content and its consequences.
- Testamentary intent: Your will must demonstrate testamentary intent, meaning it addresses your post-death wishes. Many will begin with something similar to “This document is my last will and testament.”
- Signatures: You must sign the will. A video, text message, or other communication expressing your willingness to sign is not sufficient. Signatures include an “X” (if you are physically unable to sign) and verbally instructing another person to sign for you at the time you finalize the will. Please note the individual signing the will on your behalf cannot serve as a witness to your will.
- Witnesses: States require two or three witnesses to a will. This requirement may also include a witness affidavit acknowledged by a notary public. Witnesses cannot be beneficiaries of your estate.
Once you decide to make your will, follow these steps:
1. Purchase a form
You do not want to risk using a free form. These forms rarely comply with state laws, and they do not come with guidance or instructions. Instead, purchase a state-specific will form from a reputable source.
2. Choose an executor
Your executor (or personal representative) ensures your final wishes materialize and your beneficiaries receive the property you distribute to them through your will. Choose someone trustworthy who understands your situation. Many people choose their spouse, partner, adult child, or close friend to fulfill this duty. Choose a successor executor if your original choice cannot serve in this role at the time of your death.
3. Designate beneficiaries
Decide who will benefit from your estate. Your beneficiaries can include your spouse, partner, pets, children, charities, or family members. If you do not designate beneficiaries, the court determines who receives your property.
4. Plan for your dependents
If you currently have minor children or adult dependent children, do not forget their future care. Designate money or property for their care and choose a willing and capable guardian. You can also do the same for animal companions as well as your human charges. Designate successor guardians in case your primary choice cannot fulfill this role in the future.
5. Prepare assets
Unless you wish to transfer a specific item to a beneficiary (e.g., your home to your live-in partner), you do not necessarily have to list assets in your will. However, your executor will likely liquidate your assets during probate and distribute proceeds to beneficiaries. It helps your executor to include a list of your current assets and update it when you buy or sell them. Include homes, vacation properties, cars, financial accounts, investments, and valuable personal property like antiques, jewelry, or furs on your asset list.
6. List debts
When your will starts probate, your executor sends notices to your creditors so they can file a claim against your estate. Make this job easier by including a list of current mortgages, car loans, personal loans, credit cards, tax debts, and other debt.
7. Execute the will
Once completed, review your will for accuracy and consider having an attorney do the same. When it meets your expectations, sign your will in front of two or three witnesses (depending on your state’s laws) and a notary public. Witnesses cannot be beneficiaries of your estate, and they must watch you sign the will. The notary public witnesses all the signatures and adds their acknowledgment to make the will official.
8. Make copies
Keep the original in a safe place, like a safe deposit box or fireproof file cabinet in your home office. Make copies and give them to your executor and beneficiaries. Let your executor know where you keep any keys to file cabinets or safe deposit boxes.
Changing Your Will
You can change your will if your assets change, you remarry, or any other development demands a modification. There are two options for changing a last will and testament:
- Codicil: A codicil amends your will. For example, if your original executor becomes distant or passes away, a codicil can appoint a new one. Like a will, a codicil must be signed, witnessed, and notarized.
- New will: Drafting a new will cancels out all previous wills. Make sure your new will form contains a provision to that effect before you use it.
Generally, a codicil works best for minor changes (like changing an executor or fixing a typographical error). For major life changes, like divorce, remarriage, additional children, or the sale or acquisition of a business, it is easier to draft a new will.
Finding an Estate Planning Attorney
This article addresses essential details about making your own last will and testament. But your will is likely the most important document you will draft, and you must prepare it correctly. Consider speaking with an estate planning attorney near you to review your draft will or help you plan your estate. The same law firm can also help you with other estate planning documents like a living will, power of attorney, and living trust.