Wills
What is a Will?
A will, also known as a last will and testament, is a document that allows someone to decide what will happen to their estate after they die.
The person who writes the will is the testator. Their estate is anything the testator owns. An estate can be as simple as a few personal items or as large as multiple homes, cars, and valuable goods. A will declares an executor, the individual the testator wants to be in charge of executing their wishes.
The testator can put many different things in their will, from who receives a property or family heirlooms to the guardian for their minor children. A beneficiary is anyone who is named to receive something from the estate.
What Can a Will Not Do?
You can use a will to ensure many of your assets and properties can pass to the beneficiaries you choose, but it does not cover everything. In general, you cannot use a will for these:
- Any property held with someone else in joint tenancy or in community property with right of survivorship
- Anything you have placed in a living trust
- The proceeds of a life insurance policy with a named beneficiary
- Pension plans and other retirement accounts
- Property you have held in transfer-on-death
- Payable-on-death bank accounts
Many people use estate planning to do a variety of things. A will is just one part of that. For instance, to reduce taxes on your state, you need other strategies, such as the creation of a trust. A will cannot help you reduce taxes, avoid probate, arrange care for a dependent with special needs, or put conditions on the property you leave to beneficiaries.
What Makes a Will Legal?
Anyone can make a will, with or without a lawyer. There are only a few requirements for the document to ensure it is legal and that it will be found to be valid after your death:
- You must be of sound mind when you made it. Legally, this is referred to as capacity. You understand the property you have and how you want to leave it.
- A will must be a document that includes information about beneficiaries who will receive at least some of your property.
- You must sign the document.
- At least two witnesses must also sign the document.
You do not need to notarize a will, but it may help speed it through probate after your death. Some states allow for handwritten, unwitnessed wills, but these can run into problems in probate.
Why Do I Need a Will?
Creating a will seems like a grim chore, but it is important. A will gives you control over what happens to your estate after you die. It becomes especially important if you have a large estate, minor children, and family you want to provide for.
A valid and detailed will is also peace of mind for your family. It simplifies the process of managing and distributing your estate so they have less to worry about.
Someone who dies without a will is said to have died intestate. The courts will decide what happens to your estate based on the laws of your state. Your estate will go through what can be a lengthy probate, a legal process of handling all of your property and assets.[1]
Are There Different Types of Wills?
Yes, there are different types of wills. It’s important to understand what they are and to choose the type most appropriate for your needs. A lawyer can help you make that choice.
- Simple will. As the name suggests, this is a basic will without any complicating factors or clauses. It essentially lists your assets and who you want to receive them. You can also use a simple will to name the executor and guardians for children.
- Living will. This is not a last will and testament, but it is an important document. It outlines your wishes for end-of-life care and the medical power of attorney if you cannot make decisions for yourself.
- Joint will. This is a will between two people, usually spouses. It usually transfers everything to one spouse and then outlines a plan for how to disburse the estate when that surviving spouse dies. This can be a problem if the surviving spouse remarries.
- Holographic will. Not allowed in all states, this is a handwritten will that is not signed by witnesses. It is often used when someone is at risk of dying and has no time to create a typed, signed will.
- Nuncupative will. If someone is on their deathbed and cannot create a will, they may speak a will out loud. The validity of a nuncupative will varies by state and may require several witnesses to hear it.
- Testamentary trust will. This is a will that creates a trust to hold assets for beneficiaries. Unlike standard trusts, it does not come into existence until you die. It is often used for children or disabled dependents who are unable to manage assets on their own.
Should I Make a DIY Will?
You can easily find do-it-yourself will kits online. These are easy and inexpensive but not always the best option. An experienced lawyer can do more than make you a basic will. They can provide you with advice on all aspects of estate planning.
Even if all you need is a will, a lawyer is better than a DIY kit. They know the applicable laws in your state, what makes a will valid and less likely to get stuck in probate, and how to meet all of your goals. Doing it yourself could be fine, but it could also result in mistakes that put your assets or beneficiaries at risk.
Can I Update or Revoke a Will?
It’s a good idea to update your will after major life events or every few years. A lawyer can help you make updates to your will. At the time of your death, older wills do not matter. The only valid document is the most recent. To revoke a will entirely, you should create a new one. That will invalidate the previous document.[2]
Making a will is not an easy task. It can bring up strong emotions. This is one good reason to hire a lawyer, a neutral expert who can help you make good decisions. However you create it, making a will is important for your wishes for your property and your chosen beneficiaries.