Making a will requires some serious thought about how you want to divide your estate. Whoever prepares your will has to follow your state's rules, and the will must be valid. If it is not, your state's laws will apply as if there were no will.
Under these state intestacy laws, the distribution rules are often quite different from what your will contains and can result in the wrong people inheriting from you or receiving the wrong proportions. This is why it's so important for your will to be prepared properly.
10 formalities that apply to writing a will
The following conditions apply to making a valid last will:
- Your will can be handwritten, typewritten, or prepared on a computer. Each of these can be valid, but there are certain requirements for a handwritten—or holographic—will. Most lawyers advise against making a holographic will. You can certainly hand write your own will, but you need to ensure that it's valid. That means it will require certain information such as your signature, date, address, and beneficiaries' addresses. Because requirements vary from state to state, you should have an attorney review your holographic will to make sure it's valid in your state.
- You can make an online will. You can use a last will and testament template, which some websites provide. Follow the directions provided for writing your own will. It's a good idea to have one of the website's lawyers or your own lawyer review it before it's finalized.
- Your will must meet your state's requirements for witnesses. Some states require two witnesses, while others require three. Some states require your signature and the witnesses' signatures to be notarized; some states do not. Most states do not allow beneficiaries, your lawyer, or anyone who is mentioned in the will to be a witness. Check with an estate planning attorney for your state's requirements.
- Your will must show the date it was signed. It must be dated as of the date you and the witnesses signed the will.
- Your will must be made voluntarily. Any will that is made by force, subject to threats, or under duress will be invalidated.
- You must have the capacity to make a will. This means you must be of sound mind. It means you must know that you are making a will; that you are preparing for the distribution of property upon your death; that you intend to make a will; and that you know what the will contains.
- You must be at least 18 years old to make a will. This is referred to as the legal capacity to make a will.
- Your will must distribute your property. The will has to contain the things a will would normally contain, such as leaving your property to certain beneficiaries.
- In some states, you must initial each page of your will. Check your state's law to see if this is required. If you aren't sure, check with an attorney. You may not find the answer to this question by checking an online search engine.
- Your will cannot have staples removed. If you stapled the pages of your will together, you cannot remove the staples because it will appear that someone altered your will. Removing staples may make your will void.
7 things a valid will can control
Valid last wills can provide for:
- Appointment of an executor of the estate. The executor should be someone you trust to administer the estate and follow what the will provides. The executor also pays the estate's debts and taxes. He or she helps ensure that the beneficiaries receive what you wanted them to receive.
- Division of your assets. You can divide your assets any way you choose.
- Appointment of a guardian for your children. You can name a legal guardian, and/or an estate guardian, for your minor children. Make sure the guardians are people you trust to raise your children and/or to manage the finances of the child's estate. You also can appoint a successor guardian.
- Care of your pets. To make sure your pets are properly cared for, you can list who you want to take care of them.
- Disinheriting of specified relatives. You can specify if you want to disinherit anyone.
- Your residuary estate, by using a residuary clause in the will. This is crucial because there will be property left over after all debts are paid, and beneficiaries receive their designated property. Whatever is left over can be left to specific beneficiaries in a residuary clause. Without it, such property would be transferred by state law as if you had died without a will. It's important to have a residuary clause, so this doesn't happen.
- Accuracy of beneficiaries after major life events. After marriage, a new baby, a divorce, or any other major life change, make sure you change your will. You won't want your ex-spouse to be your beneficiary, so an update is necessary. You also want your will to accurately reflect how the marriage or divorce affects your wishes for your children.
7 Things a valid will cannot control
A legal will cannot—and thus does not—control everything. When it comes to estate planning, there are several types of documents that already name your designated beneficiaries. Thus, your will does not control:
- Who receives your life insurance proceeds. If you've designated a beneficiary, the beneficiary gets the life insurance no matter what you may state in your will. If you have a change of heart, you should change the beneficiary with your life insurer.
- Who receives money from your retirement accounts and your 401(k). These act like life insurance proceeds. Whoever you've designated as your beneficiaries will get the money from the retirement accounts despite what your will may say.
- Joint checking and bank accounts. These go to the survivor, even if the will says something else.
- Joint real property. If you have real estate held jointly as tenants in common with the right of survivorship, the surviving party receives the property despite what the will says.
- Joint property, such as cars. If there are two names on the vehicle title, the survivor gets the car.
- Assets you've put into a living trust. You may want to consider having a living trust in addition to a will. A living trust avoids the probate process and allows beneficiaries to receive your property faster. Discuss your options with an estate planning attorney.
- If your will is going to be contested. People who expected to inherit from you and did not, or who are not satisfied with their share, may contest your will. As long as you made a valid will and it was reviewed by an attorney, in most cases your will should withstand the challenge. In some cases, however, it will not, and then it's up to the probate court to decide.
A will is an important instrument, but it must be valid, or your property will be divided as if you had died without having a will in place.
As noted, the formalities required for a valid will vary in each state. Check with an estate planning attorney to make sure your will has been properly prepared.
If you don't want joint property or life insurance to go to certain beneficiaries, discuss this with an estate planning attorney so you can change your beneficiaries and joint property now before it's too late to do anything about it.
