A last will and testament is a legal document to help distribute your property, speed up probate, and protect your loved ones when you die. But many people hesitate to make one because they think it’s too complicated or they don’t have enough money to make it worth it. How can you make a basic or “simple will”?
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Why Do I Need a Will?
Before jumping into the differences between a simple will and a complex will, it is important to understand why having a will is important in the first place.
When you die, your estate goes through probate. If you don’t have a will, your estate will be considered “intestate.” A probate court decides who inherits your property and who will care for your minor children.
The court distributes your estate according to your state laws. Probating an estate by intestacy is often long and expensive, and you don’t know that your estate is going to your intended beneficiaries.
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What Can a Simple Will Do?
According to state laws, a will is your statement of wishes. Depending on your needs, it can be a simple or complex will and has the same legal effect. In a simple will, you can name someone to administer your estate, name your beneficiaries and give them money or property, and name guardians for your minor children.
In drafting a simple will, there are common elements to include:
- Identification – Naming yourself as the testator (person who makes the will)
- Listing your beneficiaries (people you want to inherit from you)
- Identifying your personal property and real estate and giving it to your specific beneficiaries
- Naming a personal representative (or executor) to administer your estate with the probate court
- Naming a guardian for minor children or dependents
If you don’t have significant assets, children, or dependents with special needs, a simple will may work for you.
What Can’t a Simple Will Do?
Estate planning, in general, can be tricky. There are a lot of different terms used and documents you need to draft for a complete estate plan. However, understanding how each legal document operates can assist you in planning which documents to create. A few examples of things a simple will cannot do are:
- Establish a living trust for your beneficiaries. You need a revocable living trust.
- Name someone to manage your financial affairs when you are alive but unable to do it yourself. You need a financial power of attorney.
- Name someone to make medical decisions for you if you are incapacitated and can’t make them yourself. You need a health care power of attorney.
- Advise your loved ones on what kind of medical procedures you may want or not want during your end-of-life care. You need a living will or advance medical directive.
Are Simple Wills for You?
Because there are different types of wills, it is important to know which is appropriate for you and your loved ones.
A simple will can most likely handle your situation if you’re under 50 and have a relatively small estate (not subject to estate taxes). If you have a larger amount of assets or want to do more complicated things with your estate after your death, you may need more complex estate planning.
Here are examples of common situations where you can use a simple will:
- Don and Betty are a married couple in their mid-30s and have two young children. They’ve just finished paying off their student debts, so they have yet to accumulate many assets. They want to pass their wealth to each other if one of them passes away or give everything to their children in equal shares if both of them pass away simultaneously. In the same document, they can also name someone to care for their children until they reach adulthood.
- Chris and Sam are an unmarried couple who have a long-term relationship. They want to make sure they provide for each other if one dies.
- Rachel is single with no children and has some money and assets. She knows her parents don’t need her money if she dies, and she would like to give her assets to her favorite charities and to her nieces and nephews.
- Julie is a widow with few assets but many personal items. She wants to ensure her adult children get specific items so they don’t fight over her property.
Do Simple Wills Avoid Probate?
Sorry, but even simple will usually has to go through probate proceedings. However, having a simple will speeds up the probate process because a court doesn’t have to decide how to distribute your property.
When Shouldn’t You Use a Simple Will?
If you’re under 50, healthy, and your assets wouldn’t be subject to estate taxes if you passed away, then a simple will may meet your needs. Here are some situations where you shouldn’t use a simple will, however:
- You have significant assets and want your money managed for others after you die. For example, you would like to establish a trust that provides income for your children and then transfers the property to your grandchildren after the death of your children.
- Your estate is subject to estate taxes upon your death or the death of your spouse.
- You need to set up a special needs trust for a disabled child or dependent or want to plan for Medicaid eligibility.
Creating a Simple Will
Having at least a simple will in place can help your family manage the stress of probating your estate following your death. And you have peace of mind that your wishes are known. Some states permit holographic wills (handwritten wills), while others do not. And you must check with your state’s law to follow signature and witness requirements to make your legal will.
You can save time and money by making your own simple will. You can use a template to create a simple will or Trust & Will’s state-specific do-it-yourself will forms. However, if your estate is too complicated and you prefer legal advice, you can contact an experienced estate planning attorney to assist you.