A will is critical to ensuring your legacy. It determines how assets are distributed to your loved ones and how efficiently they are distributed, among other issues. Having a good will can reduce the expense and hassles of processing your estate. When you don’t have a will, things are likely to be more expensive and difficult for your family. Additionally, assets might not be distributed the way you want.
Most people don’t have a will because they don’t know enough about wills. They might be confused or uncertain and might not know how to start. To make the process easier, this article provides the top 10 things to know about writing a will.
You don’t need an attorney to draft a will, and there are many low-cost tools that can help you prepare a will. Many of the tools are online, but there also are traditional books and sample forms that can be used. Preparing a will yourself can save legal fees while ensuring the estate is distributed as you wish, especially when your estate isn’t complicated.
Be sure your will meets the minimum requirements of your state to be valid. If your estate is complicated or valuable, you might benefit from the assistance of an experienced estate planner.
Married couples have several choices. They can write a joint will or have separate wills. A joint will usually leaves all of the couple’s assets to the surviving spouse. But it can be changed only with the agreement of both spouses and can’t be changed after one spouse dies. Most estate planners strongly recommend against joint wills, and many states no longer recognize them. Also, a joint will isn’t useful when a spouse owns property in his or her own name.
In separate wills, the spouses can coordinate the terms of their wills. But they have separate wills that either can change, and the surviving spouse can revise the will after the other spouse passes away. Separate wills can be especially useful when property is not jointly held or there are ex-spouses or children from previous relationships.
An executor carries out the testator’s final wishes and takes the will and the estate through the probate process. The executor should be someone that you trust but also someone that your beneficiaries will trust to follow your wishes and be fair.
Often, a spouse, an adult child, another family member or a trusted friend is appointed executor. This is fine as long as the person is able and willing to do the job and is trusted by the estate beneficiaries. The executor can be a beneficiary of the estate. The executor also can consult with an attorney or other professional as needed.
But when the estate is complicated or very valuable, it might be best to name an independent individual or a professional, such as the family estate planning lawyer.
Some people appoint more than one person to serve as co-executors. This reduces the burden an individual might feel, makes the job easier, and also can convince beneficiaries the process is being done fairly.
Most people have some mementos or personal items that are meaningful to them and might be meaningful to others. In your will, you might want to include what are called specific bequests of these items. An example of a specific bequest is, “I leave my diamond bracelet to my daughter Jane.”
A specific bequest ensures that meaningful personal items are passed on to people you want to have them. Some people avoid specific bequests by relying on the executor to distribute these personal items, perhaps with the guidance of a letter of instructions listing the testator’s wishes regarding these items. But the letter isn’t legally binding, and you’re depending on the executor to follow through. A specific bequest also makes it less likely that family members each will claim that you promised the item to them.
You don’t want to go overboard with specific bequests. Some people have so many specific bequests that there isn’t much of an estate left for the main beneficiaries. Also, if you have specific bequests, you need to revise the will whenever you dispose of one of the items or change your mind about who should receive it.
If your children are below the age of 18, you will need to choose suitable guardians. If you don’t, the court or another government agency will select the guardians. The choice might be obvious to you but less obvious to the court or government agency.
Of course, choose someone you believe will bond with your children, can take on the responsibility and is willing to take on the role. You might also need to discuss finances with potential guardians, so they’ll know how much you’ll be able to provide and to what extent they’ll need to pay the expenses of raising the children.
The purpose of a will is to clearly lay out instructions for distributing assets and to avoid disputes or hassles for family, friends and any other beneficiaries. If a will is unclear, the executor and beneficiaries might have to spend time and money to settle things, perhaps involving the court. Even after an unclear will is settled, there could be lingering hard feelings among family members. Most estate planners have stories about how family members stopped talking with each other for years over relatively minor points of a will.
Additionally, being clear in a will ensures your wishes are carried out. Don’t leave things to chance or interpretation. Be sure the language in the will is clear. Don’t make assumptions, especially about the knowledge or mindset of someone reading the will. Making sure that a will is specific and clear is important.
After death, one’s will becomes a public document. It will be read aloud to the testator’s family, friends, any other beneficiaries and the court during the probate process. A will becomes part of the public record in the county’s Register of Wills or similar local agency.
That’s why some people arrange their estates so that most of it avoids probate. You can do this by transferring property to a living trust, owning it jointly with your spouse or others, and through other means.
When writing your will, be aware that it is available for public consumption.
People who believe that the will is incorrect or who don’t like what it says can challenge its validity. A formal objection, or will contest, can be based on the contention that the will does not reflect the intent of the testator.
Grounds for a will contest include lack of testamentary capacity, undue influence, duress, fraud, and forgery. A challenge also might claim the formalities of the will weren’t met, such as that it wasn’t signed properly or that a witness doesn’t meet state requirements.
But generally, a will is contested when someone was surprised by and unhappy about how they were treated in the will. A good way to avoid a will contest is to discuss the terms with anyone you think might not be treated as they expect in the will.
Make sure to keep the original will in a place that is secure, such as a waterproof and fireproof safe or lockbox. Many states require that the original signed version of the will be filed with the probate court. Copies of a will aren’t automatically accepted by a court. So, keep the original secure.
The executor should know where the will is stored and how to access it. You probably should be sure your estate planning attorney and a few relatives and close friends know where it is.
A will should be updated after any changes to a testator’s marital status, descendants, beneficiaries, or estate. If the testator obtains a divorce, gets married, or has children, then the will would need to be updated. An update might be wise when one of your children has a child. Additionally, if the testator’s beneficiaries or executor die or there is a significant change in the testator’s assets, a will should be revised. Of course, there could be changes in the tax law or other estate planning laws that make it prudent to update the will.
Even if none of these events occurs, it is a good practice to review the will every few years to see if updates are needed.
Valuable contributions to this summary of “10 Things to Know About Writing a Will” were made by Bob Carlson, editor of the Retirement Watch financial advisory service and chairman of the Board of Trustees of Virginia’s Fairfax County Employees’ Retirement System with more than $4 billion in assets.
Katie Kao is an editorial intern with Eagle Financial Publications.