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Guide to Wills: The Definitive Guide to Your Last Will and Testament

Last update on: Dec 18 2020
By Katie Kao
estate planning

 

Guide to Wills: The Definitive Guide to Your Last Will and Testament addresses one of the most important documents for guarding wealth, providing for loved ones, and achieving other goals. 

 

Regardless of the size of an estate, the will is a critical part of an estate plan. It guides the distribution of assets and provides for beneficiaries upon one’s death. Yet, according to surveys, only 42% of American adults have a will. 

 

About 74% of Americans who lack a last will and testament reported that it is because they find wills and estate plans to be confusing topics. Without a will, property will be distributed according to the state law, and its priorities could be very different from yours. Therefore, it is important to have a will and ensure that you make the important decisions about how your assets are to be distributed to benefit among your loved ones and any other interests. 

 

This article, The Definitive Guide to Your Last Will and Testament, will guide you through the features of a will, its many powers, how to prepare one, and how best to exercise a will’s powers.

 

Table of Contents for Guide to Wills: The Definitive Guide to Your Last Will and Testament

Guide to Wills Section 1: What Is a Will?

Guide to Wills Section 2: Why Is a Will Necessary?

Guide to Wills Section 3: What if I Don’t Have a Will and Die Intestate?

Guide to Wills Section 4: Different Types of Wills/Which Type of Will is Right for You?

Guide to Wills Section 5: What are the Requirements of a Will?

Guide to Wills Section 6: How Do I Prepare a Will?

Guide to Wills Section 7: Who Can Help Me Prepare a Will?

Guide to Wills Section 8: Top Things to Know About Having a Will

Guide to Wills Section 9: Specific Sections to Consider Adding to Your Will

Guide to Wills Section 10: Tips to Safeguard Your Will

Guide to Wills Section 11: Final Checklist for Your Will

 

Guide to Wills Section 1: What Is a Will?

(For further details, click the following link: What is a Will and Why Do I need One?)

 

A will is a legal document in which a person, known as the testator, sets forth his or her wishes about how to distribute an estate’s assets, pay debts, care for any minor children,  and handle other issues after the individual dies. Most often, the testator also appoints one or more executors to administer the estate and names guardians for minor children in a will. A will also might create one or more trusts and name the trustees.

 

Guide to Wills Section 2: Why Is a Will Necessary?

(For further details, click the following link: 6 Reasons Why Your Will is Critical to Your Estate Plan)

 

A good will can reduce the expense and hassle of processing an estate. Without a will, the settlement and distribution of an estate is likely to be more expensive, prolonged, and difficult.

 

A few of the reasons to have a will are to: 

  • Ensure that assets are distributed as the estate owner intended.
  • Designate charities to receive part of an estate and the amounts or property they receive.
  • Name one or more executors to handle the administrative items of the estate and carry out the testator’s wishes.
  • Avoid having assets inherited by anyone the testator does not want to receive them, even though that person otherwise would inherit under state intestacy laws.
  • Assign how life insurance proceeds that are payable to a person’s estate are distributed.
  • Identify guardians for minor children.

 

A valid will increases the chances an estate will be processed faster, at lower cost, and in the way the deceased preferred than would happen without a will.

 

Guide to Wills Section 3: What if I Don’t Have a Will and Die Intestate?

(For further details, click on the following link: Reasons to Avoid Dying Intestate)

 

When a person dies without a will, known as dying intestate, state law controls how the property in the estate will be distributed. Often, the property isn’t distributed how the deceased would have wanted. Under the intestacy laws of many states, children inherit one-third to two-thirds of the estate and the surviving spouse inherits the rest of the estate. 

 

Dying intestate also can be more expensive than preparing a will and estate plan, because state courts and lawyers are likely to be more involved.

 

By drafting a will, the testator can distribute the estate how he or she wants. In addition, the testator can determine whether someone inherits property outright or through a trust. The testator also can direct that part of the estate be donated to charity. In addition, when there is no will a court appoints the executor and guardians of minor children and makes other decisions the deceased could have made in a will. 

 

Guide to Wills Section 4: Different Types of Wills/Which Type of Will is Right for Each Person?

(For further details, click on the following link: What Are the Four Basic Types of Wills?)

 

A will can have many different features and exercise different powers. While there is one type of will that is used most often, there are other types of wills that can be used in appropriate circumstances.

 

#1 The Testamentary Will

The traditional last will and testament sometimes is called the testamentary will. It is a formal written will that delivers the testator’s wishes clearly. It is signed by the testator in the presence of two or more witnesses and might also be notarized. The details required to make the will valid vary from state to state.

 

#2 The Holographic Will

A holographic will is one that is written and signed by the testator, but without the presence of witnesses and notarization of the signature. It usually is handwritten but doesn’t have to be formally written. Due to the relative lack of proof for the validity of the will, many states no longer accept a holographic will or only accept it under special circumstances.

 

#3 The Oral Will

An oral will involves the testator speaking his or her last wishes to one or more witnesses, and often without a written record. Many states do not accept this type of will or will accept it only in deathbed situations.

 

#4 The Joint, Mutual and Reciprocal Will

These three wills are very similar in purpose and often confused with each other. Married couples are those most likely to try to use one of these types of wills, to save either money or time. A joint will generally is regarded as a single document created by two parties, usually spouses, who leave their assets to each other. Mutual wills are two or more separate documents that are mutually binding on the parties, even when one passes first. These two types of wills cannot be changed without the consent of all parties involved.

 

On the other hand, reciprocal wills are two documents written by two parties, each testator naming the other as the beneficiary of the estate upon death. The surviving party can change his or her will following the other party’s death.

 

Guide to Wills Section 5: What are the Requirements of a Will?

(For further details, click on the following link: What is a Will and Why Do I need One?)

 

Although there are variations between different types of wills, a will must meet several general requirements to be valid in most states. 

 

The specifics vary from state to state, but most states require the following:

  • The testator must have testamentary capacity and be acting without duress, undue influence, or compulsion. Testamentary capacity is the ability to understand what is in the will. Any person age 18 or older can execute a valid will.
  • The will usually must be written. It can be in any language and on any material. Many states are beginning to accept wills that are entirely in a digital format and never were printed and signed. 
  • The will should be dated and signed by the testator in the presence of at least two adult witnesses, who are disinterested parties and not beneficiaries of the will. The witnesses usually must attest in writing that the testator appeared to be competent and not acting under duress or undue influence when he signed the will. Some states require more than two witnesses. Some states also require the signatures to be notarized.
  • A state might not require witnesses. But it is best for a testator to sign in the presence of disinterested witnesses because that makes it harder for someone to challenge the will. 

 

If the requirements above are not satisfied, it is easier for someone to challenge, or contest, the will’s validity. Most commonly, will contests are based on the grounds that the testator lacked testamentary capacity, was under duress or undue influence, or that the will didn’t reflect the actual intent of the testator, in entirety or in part.

 

Guide to Wills Section 6: How Do I Prepare a Will?

(For further details, click on the following link: How to Make a Will Without A Lawyer)

 

In addition to knowing the foundations and general requirements of a will, it can be useful to know how to prepare a will yourself. Preparing a will without a lawyer can save a testator money and time. In 2019, 53% of people who did not have a will said the reason they didn’t was the difficulty of finding an attorney they could trust.

 

Listed below are the steps to make a valid will without a lawyer.

 

How to Prepare a Will Step #1: Make a List of All Assets and Liabilities

First and foremost, make sure you know what you own and owe. The best step is to prepare an inventory of your assets before deciding how to allocate them to heirs. Also, prepare a list of any debts, because the executor will have to pay these debts before distributing assets.

 

How to Prepare a Will Step #2: Understand the Legal Requirements of a State and Know any Necessary Language and Features.

Different states accept different types of wills, but all states will accept some form of the traditional testamentary will. Therefore, you should strive to meet the requirements of a testamentary will in your state. For example, most states require two witnesses, while Vermont requires three. A will that meets all of the state’s formal requirements is harder for others to challenge.

 

How to Prepare a Will Step #3: Create a Basic Template Yourself or by Using an Online Service

It is best to have the will typed or computer-generated. Therefore, it will make things easier for your executor if you use a basic template or an online service — which reduces the potential the will won’t be considered valid.

 

How to Prepare a Will Step #4: Decide on Your Beneficiaries

A beneficiary is a person who receives property through the will, which is known as a bequest. Most often, the main goal of a will is to state how the estate should be distributed among beneficiaries, because the intended distribution is different from the way a court would distribute the estate following state law. Sometimes the will also designates that one or more specific assets will be bequeathed to one or more particular beneficiaries. After such specific bequests are made, the rest of the estate is known as the residual estate and often is distributed in percentages to beneficiaries without designating how specific assets in the residual estate are distributed. 

A minor child cannot legally own the assets that are bequeathed to him or her until reaching the age of majority. Either a guardian must be appointed to handle the child’s assets or the will can create a trust in which the trustee will manage the assets until the child reaches an age named in the trust agreement

 

How to Prepare a Will Step #5: Name Guardians for Any Children

If the testator has minor children, the will should designate one or more individuals who will serve as guardians for the children if both parents are deceased. If guardian(s) are not designated, the court will choose the guardians.

 

How to Prepare a Will Step #6: Appoint One or More Executors of the Estate

The will should appoint one or more executor(s) of the estate. An executor manages the estate through the probate process and eventually distributes the estate to the beneficiaries. Since the executor manages the estate through the probate process, the choice of the executor or executors is important. Anyone can be named as executor, the only requirement is that he or she is an adult and a U.S. citizen or permanent resident.

 

How to Prepare a Will Step #7: Include Additional Instructions in a Letter

It is often a good idea to include a letter of instructions to the executor. The letter isn’t part of the will and has no formal legal authority, but usually gives detailed information about assets, where they are located, and suggestions for how they should be managed. The letter is intended to make the executor’s job easier and answer any questions people might have about the estate or will.

 

How to Prepare a Will Step #8: Sign the will in Front of Witnesses

Be sure to sign the will in the presence of the number of witnesses required by your state of residence. Most wills aren’t valid until it is executed, which occurs when the testator signs it in front of witnesses. Some state laws provide that only the portion of the will appearing before the signature are valid. Any writing after the signature isn’t valid. The witnesses must be adults and be disinterested, which means that they are not beneficiaries under the will. 

 

How to Prepare a Will Step #9: Store the will in a Safe Space and Update it When Needed

As a last step, be sure to store the original copy of the will where it is reasonably safe and be sure that key individuals, especially the executor, know where the original and any copies are stored and they can access them. A will should also be updated periodically, especially after any major life changes of the testator or his or her family or after significant changes in the assets owned by the testator.

 

Guide to Wills Section 7: Who Can Help Me Prepare a Will?

(For further details, click on the following link: What Your Will Can and Can’t Do)

 

Nowadays, it is easy to prepare a will by oneself by using an online service or typing it on a computer. However, if one has special circumstances or a complicated estate, it is best to find a lawyer or attorney to help prepare a will. 

 

An experienced lawyer or estate planning professional can guide the testator through the complicated area and provide useful advice on estate planning strategies. Using a professional also helps mitigate risk that a will is successfully challenged in court.

Guide to Wills Section 8: Top Things to Know About Having a Will

(See main article: 7 Things About Wills You Must Know)

 

A will is critical to ensuring one’s legacy. Not only does It determine how assets are distributed to loved ones and how efficiently they are distributed,  a will can reduce the expense and hassles of processing an estate. However, many people don’t know some key facts about wills and might not know how to start to prepare a will. Below are some of the most important things to know about wills.

  • Wills cover more than just property. You can include anything concerning the funeral, memorial service, and what’s done with the testator’s body. You also can state how pets are to be cared for.
  • If the testator is disinheriting any member of his family, the will should specifically name the person in the will and state that the testator knowingly and intentionally is not leaving them anything. Most estate planners recommend stating briefly why the person is disinherited.
  • A will can be challenged by anyone who might have an interest in the estate.
  • The testator can’t control the disposition of all the assets through a will, including those that have designated beneficiaries such as IRAs, annuities, and life insurance.
  • A trust  can be created within the will. To leave a portion of the estate to children, state in the will that the property will be transferred to a trust of which they are beneficiaries.
  • Wills can include almost any conditions for the disposition of property. For example, one can make gifts contingent on a beneficiary being married, staying married or being employed, etc.
  • After death, the will becomes a public document.
  • A will can be changed. Since a testator needs to include a line that states the copy is the last will and testament, the individual can change a will and dispose of other copies accordingly.
  • Make sure to update a will regularly. Any changes in marital status, descendants, beneficiaries, or the estate should trigger an update to the will.

 

Guide to Wills Section 9: Specific Sections to Consider Adding to a Will

(For further details, click on the following link: Instruction Letters and Ethical Wills)

 

A will can include more than descriptions of how property is to be distributed among family members.

 

A testator can include charitable donations in the will. Gifts or charitable donations in the will usually are through specific bequests. Charitable contributions through the estate can reduce estate taxes.

 

A testator also can add more personalized sections and speak directly to loved ones.

 

The will can include an instruction letter to your executor, as discussed earlier. This letter is a non-binding expression of wishes and instructions. It can answer questions, list the location of important documents and property, and give advice about how to handle distribution.

 

A will also can include a letter to loved ones, often called an ethical will. The ethical will is addressed to family members and loved ones, and it is more philosophical than the instruction letter. It is meant to share personal and family history, wisdom, and life lessons with loved ones. An ethical will is a good way to wrap up your estate plan, and make sure your children or other loved ones know what really mattered to you or what you wanted for them.

 

Both the instruction letter and ethical will described above are non-binding, and therefore do not contain any legal authority. Sometimes they are included in the will and sometimes they are in separate documents. However, you should know that your will is uniquely your own. It can include any sections ranging from extremely personal to strictly business.

 

Guide to Wills Section 10: Tips to Safeguard Your Will

(For further details, click on the following link: Bullet Proofing Your Will and Estate Plan from Legal Challenges)

 

Even with a valid and secured will, it is still possible for someone to challenge a will. In the words of Bob Carlson, editor of RetirementWatch, “Every estate plan should anticipate a contest or challenge.”

 

Therefore, it is best to consider adding specific measures to safeguard a will and decrease the chances that a contest against the will succeeds. Here are some steps to take as the testator:

  • Consider a prenuptial or postnuptial agreement with one’s spouse. States often restrict the ability to cut a spouse out of a will or leave a limited share. If your will doesn’t leave the surviving spouse the minimum required by the state, you should have a prenuptial or postnuptial agreement in which the spouse waives the state’s minimum share.
  • Do not give favored heir or heirs extra influence in or access to the Estate Planning process. As a general rule, be careful about actions that might be considered undue influence or coercion when making the will. The most common ground used for challenging a will is that someone exerted undue influence when the will was drafted.
  • Lay the groundwork for testamentary capacity with a professional evaluation or affidavits from people who were around the testator at the time of the will’s signing.
  • Include a no-contest clause. The no-contest clause states that anyone who loses a challenge to the terms of the will also loses anything he or she was entitled to receive under the will.
  • Execute multiple wills over time, with minor changes to the components. Often when a will is challenged the previous will that was validly executed becomes the will to be probated. 
  • Try to prepare your will and estate plan to avoid a lengthy or complicated probate
  • Communicate with your heirs. Try to give notice of any unexpected terms of the will so the heirs can absorb the information, ask questions, and perhaps suggest changes.

 

Guide to Wills Section 11: Final Checklist for Your Will

(For further details, click on the following link: The Ultimate Will and Estate Planning Checklist and Basics Guide)

 

To ensure a will is complete and valid, review this checklist of questions both after the will is completed and every year or two.

  1. Is the will up-to-date?
  2. Did the testator understand and consider all the types of wills and choose the most applicable type? 
  3. Does the testator understand the contents of the will? Does the testator know what the will does and doesn’t do? 
  4. Has the testator decided on and named the beneficiaries of the will?
  5. If the testator has minor children, does the will name one or more guardians for them?
  6. Has the testator named one or more executors for the estate and a trustee or trustees for any trusts created in the will, including successor in case the first choices cannot serve?
  7. Has the testator considered making charitable bequests in the will? 
  8. Has the testator considered the size and complexity of the estate in determining whether to prepare the will personally or with the help of an attorney? If it is a complicated or valuable estate, consulting a lawyer should be strongly considered.
  9. Has the testator considered adding a no-contest clause?
  10. Does the testator have a prenuptial or postnuptial with a spouse?
  11. Has the testator communicated with loved ones to mitigate any surprises in the contents of the will?
  12. Did the testator sign the will in front of at least two witnesses who also sign the will?
  13. Does the testator have a safe place to store the will?
  14. Has the testator prepared a book of instructions, checklists and documents for the executor and loved ones? These documents make things easier on loved ones and help ensure a testator’s goals are met. Sample instructions, checklists and documents are available in the workbook by Bob Carlson, To My Heirs.
  15. Does the testator have a plan to review and update the will? It is best to update a will regularly.

 

Using the Guide to Wills: The Definitive Guide to Your Last Will and Testament helps a testator prepare a valid will that distributes the estate to the beneficiaries of the testator’s choice and achieves other goals.

 

Valuable contributions to “Guide to Wills: The Definitive Guide to Your Last Will and Testament” 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.

September 2021:
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A devastating new law has just been enacted, with serious consequences for anyone holding an IRA, pension, or 401(k). Fortunately, there are still steps you can take to sidestep Congress, starting with this ONE SIMPLE MOVE.
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