Making a will is important to your estate planning, but let’s face it: it’s unpleasant to think of our own finality. That’s why many folks tend to put it off for later, to the detriment of their loved ones.
So it shouldn’t come as a surprise that the majority of Americans don’t have a will. In fact, according to a survey conducted by Caring.com, in 2020 only 32% of adults have a will.
You owe it to yourself and to your heirs to plan in advance and write your will. It’s the responsible thing to do. Creating one isn’t complicated, and it avoids delays and unnecessary hassles to your family. The peace of mind you get in return is worth your time.
Writing a will isn’t something you do only when you hit a certain age. Indeed, if you have young kids, you should consider making one. In this article we discuss nine things you need to consider when writing a will.
What is a will?
A will is a legal document that sets forth how you want all your worldly possessions distributed after you pass away. It covers not only how you want your property divided among your loved ones, but also your wishes regarding care for your young children, if you’re a parent.
If your kids aren’t adults by the time you die, a will lets you designate the person you want to take care of them. That is, it lets you establish guardianship of your children.
While your will determines who gets possessions like the house, your stocks and grandma’s china, for example, some exceptions apply. Assets like retirement accounts aren’t included in your will as these already have beneficiaries assigned to them. You likely listed them when you set up the accounts. Also, real estate or bank accounts held in joint names with right of survivorship aren’t included.
In some cases, a will may not divvy up everything outright. It may create new trusts that can continue for some time if your affairs require them.
What happens if I die and I don’t have a will?
If you haven’t made a valid will before you die, you’re said to have passed away intestate. When that happens, the distribution of your property is determined by statutory laws called intestate succession laws, which vary depending on where you live.
Were that to happen, your state may decide an order of distribution among your family members that may or may not be aligned with your wishes. With a will you can make life easier on your family.
Additional benefits of having a will include that it:
- Names an executor. An executor or personal representative is the person named in your will to handle your estate. Absent one, the law will appoint one for you.
- Assigns a guardian for your kids. By choosing a legal guardian for your infant children or other incapacitated dependants you avoid a court-appointed one.
- Avoids further delays from a probate process. Probate is a court-supervised process of distributing your property according to your will. In many states, a well-drafted will can avoid some of the steps required in the probate proceedings.
Making a will is important, but it’s also important that it’s valid. Otherwise, it won’t afford you any of the above benefits. All wills must have witnesses to be legally valid.
Do you need a lawyer to make a will?
The complexity of your estate will dictate whether you need to hire a lawyer. Some people can do without an attorney and write the will themselves. For others, it makes sense to seek the advice of legal counsel.
- Will checklist form. If your holdings are simple, you can find will preparation worksheets online and prepare your will on your own. Try searching for “will template” to get you started.
- Will preparation software. As your asset situation begins to evolve and increases in complexity, you can write a will with the help of estate planning software. A simple search for “will making software” will point you in the right direction.
- Get a lawyer to craft a will. When your estate planning is more complicated, retain legal counsel to help you. A board-certified lawyer is your best bet and you can find one at the National Association of Estate Planners & Councils. You can search their directory to find the right professional for you.
Once you complete your will, make sure it’s accessible to your loved ones. Otherwise, the state could end up deciding how your belongings get distributed.
If you’re concerned about meeting state guidelines or reducing disputes among heirs, consider hiring an attorney.
Who should be the executor of your will?
You can name a trusted relative or friend as the executor of your will. In fact, any adult family member can act as executor. In that role, he or she will be in charge of settling your affairs according to the terms of your will.
Including an executor in your will is important; if you don’t, the state will assign one for you and you’ll depend on their interpretation of your wishes. Be aware, though, that being an executor isn’t a minor responsibility.
Whoever you appoint as executor will be in charge of gathering your assets, paying debts, settling business affairs, filing tax returns and distributing any remaining property as per your directions. If you have complicated holdings, you should consider appointing an attorney as your executor.
What to include in a will and testament
Specificity is important in your will. Leaving all your assets to your partner thinking they’ll then pass them on to your children may not be specific enough. They may remarry and perhaps have other kids. What then?
You need to specify your beneficiaries, the assets they are to receive and when. At a minimum, the following four things should be included in your will:
- Real estate assets. This includes your primary residence and other property or properties you may hold.
- Guardianship. Not only of your minor children, but also of your pets.
- Stocks and bonds not in a retirement account. These usually don’t require you to assign a beneficiary and thus should be included in your will.
- Cash. Not only the cash sitting in your banking accounts, but also in money market accounts you may hold.
You need witnesses when you sign your will
To be valid, your will needs to be signed in the presence of at least two witnesses who shouldn’t be beneficiaries of the will. Most states require two witnesses. But if you live in Vermont, you’ll need three.
If your will includes something called a self-proving affidavit (which is a sworn statement), a notary will need to sign the affidavit. You’ll need to find a notary public.
Where to store your will
Keeping your will under lock and key may sound like a good idea, but it’s not. The original must be accessible to your heirs should they need to gain access to it. Otherwise, if you’ve locked things up, a court action will be required to get access to it unless you’ve provided authorization.
Making your original signed will accessible can reduce family conflict and help avoid intestate succession laws. Let someone you trust know where you keep yours.
How often do you need to update a will?
As your life situation changes, you’ll need to start making adjustments to your will. For example, if you have more children, buy property or your marital status changes, you’ll want to update your will.
Also, if you moved to another state or built a business you’ll want to revisit your will and update it accordingly.
Can anyone challenge my will?
People can challenge the validity of your will. For example, direct beneficiaries, business associates or extended family members can contest your will.
To reduce the chances of a successful challenge, it’s important that your will is signed in front of witnesses, that it meets your state’s requirements and that all legal formalities are met.
A person can challenge or contest your will on the following grounds:
- You’re incapacitated. For instance, if you weren’t sound of mind when you created your will.
- When fraud is committed. For example if you signed a document you didn’t know was a will.
- Lack of formalities. Procedures such as witnesses being included were not followed.
- Undue influence. You were unduly influenced in crafting your will to the detriment of other beneficiaries.
If the will is challenged, it’ll disrupt the probate proceedings and can take months or even years to settle. If you’re concerned about your will being contested, retain an estate planning attorney to help you navigate the process.
Assets that you should not put in your will
There are some types of property that you shouldn’t include in your will because they already have beneficiaries assigned or joint tenancy attached to them.
Examples of assets you don’t need to put in your will include:
- Retirement plan proceeds from accounts such as 401(K)’s and IRAs for which you’ve already assigned a beneficiary or beneficiaries.
- Life insurance policies whose proceeds pass to a beneficiary by designation.
- Assets you’ve already placed in a living trust
- Jointly owned property with right of survivorship