About 74% of Americans lack a last will and testament, often because they find it a confusing or difficult topic.
Writing a will is not as difficult as many people believe, and many people can do it with or without a lawyer. A lawyer is not required for a valid will, but many people find that the assistance of an attorney helpful and reassuring.
What if you do not have a last will and testament?
If you pass away without having a valid will, there are several likely consequences:
Decide whether to write it yourself or hire a lawyer.
Writing and typing a last will and testament without a lawyer is perfectly acceptable as long as all the components and requirements are included. There is also the option of using one of the online services that help you write a will and other estate planning documents. Those who aren’t confident of their ability to write a will that will stand up in court and fulfill their wishes should enlist the help of a lawyer to draft a will.
Make a detailed inventory of all assets and liabilities.
You can’t decide how to have your estate distributed until you know exactly what you own and owe. Your assets will be used to pay any debts after you pass away. Only the assets remaining after debts are paid will be distributed.
The inventory shows you and your attorney clearly what’s in the estate. That makes it easier for you to decide how the estate should be distributed.
An inventory of the estate also is important for your executor. He or she can administer your estate more quickly and efficiently when you leave a detailed, updated description of what’s in the estate.
Choose beneficiaries for assets.
A beneficiary is a person who inherits assets after the testator’s death. The testator has a gret deal of freedom in naming beneficiaries and excluding beneficiaries. The only legal limit in most states is that a current spouse generally can’t be fully disinherited unless the spouse agreed in a premarital or postmarital agreement.
Most people first want to ensure the spouse is taken care of to the extent the estate allows. After that, they want their children to receive any remaining assets. Many people leave something to one or more charities. A typical will leaves all or most of the estate to the surviving spouse. The children inherit assets only after the spouse passes away.
But how the estate is divided depends on your family, your charitable interests, the value of your estate, and the financial situations or your spouse and children. Some people exclude one or more children from the inheritance because the children have substance abuse or other problems. Or the property is left in trust for such individuals, so that a trustee manages and distributes the assets.
In some states, a minor child cannot legally own the inherited assets until reaching the age of majority. When you intend to name a minor as a beneficiary, the money should be left in a trust for the benefit of the minor or you should name a guardian to manage the assets until the beneficiary reaches the age of majority.
Designate guardians for minor children.
If you have minor children, you can name one or more guardians for them in your will. If you don’t name guardians, the court will name them. The guardians assume full responsibility for the children after the testator’s death. It is also recommended to select alternate guardian choices, in case the first choice is unable to assume the responsibility.
Appoint an executor for the last will and testament.
An executor administers the estate and handles everything related to the estate, according to state law and the terms of the will. Anyone can be named as the executor, but it is often a trusted individual. The only requirements in most states are that he or she is an adult and a U.S. citizen or permanent resident. Additionally, the testator should consider whether to compensate the executor in return for closing the estate. More than one person can be appointed as co-executors.
Include all the legal requirements in your state of residence and any necessary language.
The requirements of a last will and testament often differ between states. It is important to understand the specific requirements of your state of residence before drafting the will. For example, if the state does not recognize holographic wills, make sure to type and print the will. Some states, such as Vermont, require three witnesses instead of the two most states require, so the testator should make sure to satisfy the laws of the specific state in which he or she is a resident.
A last will and testament, keeping with its name, needs to be identified as the most current and last updated version, so the testator would need to include necessary language revoking any previous versions and state that the current version takes effect. This is usually an Acknowledgment, to formally declare that the document stands as the last will and testament.
Consider leaving a letter to the executor in case of additional instructions.
It is common to write a letter of instructions to the executor of the estate. This letter has no formal legal authority. It provides helpful information about how to manage assets in the estate or choose how to distribute it among beneficiaries. It is especially helpful when the estate contains assets that aren’t the norm, such as a small business or a valuable collection.
Some people also leave a letter to family members and friends, providing some personal philosophy or sentiments. It serves as a last love letter.
Sign in front of witnesses.
Make sure to finish the last will and testament by signing it at the end in front of the required number of witnesses for your state. A will generally isn’t valid until it is signed by the testator in the presence of witnesses who also sign it. Some state laws say that only instructions written above the signature are valid. Any writing after the signature is not valid unless separately proved.
Witnesses must be disinterested, meaning that they are not listed as beneficiaries, and legal adults. They serve to testify during probate or will contests that the testator had testamentary capacity when signing the last will and testament.
Safely store and update the last will and testament
Be sure to store the last will and testament in a safe, secure location. It is best to keep the original copy in a protected place, preferably a waterproof and fireproof safe. Additional copies of the last will and testament would also be useful for court proceedings, but should be kept in separate places from the original copy. Also, be sure your executor and any other key people know where the original and all copies are located.
A last will and testament should be updated when there are any changes in marital status, births or deaths in the family, or marriages or divorces among family members. Significant changes in the value of the estate, the tax law, or other laws also can be important times to update the will. A good practice is to review the last will and testament every few years and update it for any necessary changes.
Most states do not require a last will and testament to be notarized, except Louisiana. However, it might be a good idea to notarize the last will and testament even if the state doesn’t require it. Notarization ensures the document was signed by the testator.
Valuable contributions to this summary of “How to Write a 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.