No one wants to think about a time when they'll no longer be around, but planning for the inevitable—that is, setting down your wishes in as last will—can not only give you peace of mind, it can also make things easier on your family and friends.
Having a last will in place at the time of your death is a smart choice, but as with everything, there are advantages and disadvantages to consider when drafting one. Some of these pros and cons are discussed below.
Advantages of a Last Will
- You can leave property to those you choose.
One of the greatest advantages to having a will is that you can choose who will receive what from your estate. Without a will, your estate is subject state laws of “intestacy.” That means the people you would like to benefit may receive little or nothing, while others with whom you're not as close receive the bulk. Accordingly, if you are not married but have a long-term partner, he or she could receive nothing under such laws. Alternately, if you are in the process of a divorce but it has not been finalized, without a will, your estranged husband or wife could make a claim on your estate.
- You can name a guardian for children and provide for them.
A will allows you to choose a guardian for your children and set aside funds to make sure of their support and comfort.
- You can create a testamentary trust in the will.
You can create a testamentary trust within a last will, which is created upon your death and used to hold property for another person's benefit, such as your children.
- You choose your executor.
The executor is in charge of making sure all your bequests are carried out. A will gives you complete control over deciding who this will be. The executor should be someone who is willing and able to handle everything that is involved with the closing of your estate. Without a will, a court appoints someone to administer your estate, and that person may not be someone you would choose.
- You can plan for personal matters.
From burial arrangements to pet care, you can use a will to dictate what type of services, if any, you would like, and other personal matters.
- You can amend it.
Circumstances change, and so can your will. Through a “codicil,” you can amend any provisions of your will at any time so that they better reflect your most current wishes and assets.
- You can revoke it.
If you find that a will no longer represents your interests, you can revoke it entirely and start over.
- Doesn't have to be expensive.
Creating a last will can be surprisingly affordable, particularly if your finances, assets and beneficiaries are fairly straightforward.
Disadvantages of a Last Will
- Possible challenges.
Although it's possible that someone could challenge your will, if you have followed all of the proper procedures in its creation, your will and its provisions will likely stand.
- May need to go through probate.
If you have assets that pass under your will worth more than a certain amount, your will must be filed for probate, the procedure through which a decedent's assets are distributed; this can be a long process, which can, in turn, be costly for the estate. In contrast, a living trust does not require probate.
- It is public record.
A will becomes public record once it is filed for probate, which means anyone can search for it and see its contents.
- May not fully address tax concerns.
A will that is not carefully planned out could leave your estate open to paying large state and/or federal estate taxes or your beneficiaries to paying hefty inheritance taxes. LegalZoom's Last Wills include provisions helping to minimize state and federal estate taxes.
Final Thoughts on Last Wills
All of the disadvantages listed above can be addressed with proper will planning and/or other estate planning documents, so don't let the potential downsides discourage you from expressing your last wishes in writing.
Also, laws regarding last wills do vary by state, so it is crucial that you understand the requirements for drafting and signing a valid will in your jurisdiction to avoid further problems in its execution.
This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.