With the right preparation, you can create a will that covers your unique needs. This guide lists the basics on how to make and change a will.
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by Jennie L. Phipps
Jennie has been wrangling words for decades. She specializes in technical topics, including insurance, healthcare fin...
Updated on: February 29, 2024 · 13min read
This guide serves as a roadmap for creating your will, a legal document, and a key component of estate planning: It helps you navigate this intricate legal process, from identifying your assets and debts and designating beneficiaries to appointing an executor. Ensure your estate planning wishes are respected and your loved ones are cared for after your death.
There are four types of wills: simple will, testamentary trust, joint will, and living will. The will that is right for you depends on your and your family's situation. But as you dig deeper into the estate planning process, you may find that you need more than one type of legal document. Luckily, all four types of wills can work together.
Simple will: A simple will is best for people with no children or complex assets or people who may not have a lot of assets to distribute. A simple last will and testament is created by identifying who is writing the will, also known as the testator. It confirms that the testator was of sound mind when the last will was made, then names an executor and beneficiaries. This process is known as providing self-proving affidavits.
Testamentary trust: A testamentary trust is an estate planning document that works with your will. It provides for the distribution of all or part of your estate and proceeds from any life insurance policies. Testamentary trusts are ideal for people who have young children or children with disabilities. A testamentary trust can also be used with a special needs trust.
Joint will: This is commonly used by married or partnered couples to distribute the couple's assets. For a joint will to be valid, both parties must agree on asset distribution. In most cases, assets will be passed to the surviving partner, and when the surviving partner dies, assets will go to any surviving children. The downside to joint wills is that if circumstances change after a partner's death, the surviving partner is still bound by the terms of the joint estate planning documents.
Living wills: A living will is an estate planning document that details how you would like to receive medical care if you can't make decisions for yourself. Having a living will in place can help spare your loved ones from having to make some difficult decisions if you are incapacitated.
The easiest way to write a last will and testament is to put your final wishes, including beneficiaries, assets, and legal guardians for minors, etc., on paper and have the document witnessed, usually by at least two witnesses, and notarized.
Many people choose to use a will template, which provides step-by-step instructions. Usually, there is a modest flat fee for this template. These will makers generally include the necessary self-proving affidavits that make the will valid.
While this notarized document may be the easiest way to create a will, it isn't the most effective way to fulfill your final wishes. It may not even meet all the legal requirements nor be legally binding.
Even though a will is a place where you can make your final wishes known and distribute assets, a will is not always the most legally sound or appropriate place for all of your last wishes. Some things are better served by being placed into a living trust, a living will, or other estate planning documents. Here are a few things that you should avoid putting in your will.
Business interests: Most wills have to go through the probate process. Because probate can take time, it is best to avoid leaving your business interests in your will because time in probate can adversely affect ownership or management transitions. Instead of putting business interests in your will, business owners should have a succession plan as part of the estate planning documents.
Personal wishes and desires for funeral instructions: A common misconception about writing a will is that this is where you make your final wishes known for a funeral or other arrangements. However, because of the probate process, you risk your loved ones not knowing what those wishes are until after probate is complete. Instead of putting your final wishes and desires in your will, consider putting that information into a letter of instruction. This less formal document can be delivered directly to your loved ones so they know your final wishes. A copy of it should also be placed in a physical or digital legacy drawer. This is a place that your loved ones know about and can access readily.
Coverage for beneficiaries with special needs: If you have children or other extended family members with special needs, providing for them in your will can risk negatively impacting government benefits they may be eligible for. Instead, consider a special needs trust. This type of trust will ensure that your loved ones are cared for without jeopardizing their government benefits. A special needs trust is also a good idea for blended families who may want to provide differently for separate groups of children.
Property: Not all property can be included in your will. Any real property held in trust or joint tenancy should not be included in your will. Many laws and rules affect how physical property can be passed on after death. Check out this article for more information on what property both you and your spouse or partner should avoid including in your will.
Making your own will is simple, but you must gather documents to understand your assets, where they are, and who you want to leave them to. Use the steps below as a guide to help you get started.
Think of all your assets as the treasure chest of your financial life—they include cash, financial and investment accounts, bank accounts, property, and more. Conversely, you may have debts and financial obligations owed to another party, such as mortgages or credit card debt. These two elements form the backbone of your own estate planning needs, and understanding them is a fundamental step in estate planning.
Here is a list of documents and information that can help you identify your assets and debts:
Once you feel like you have a handle on your assets and debts, you can move on to designating more children as your beneficiaries.
Beneficiaries are the people who will receive your hard-earned assets. Without clear beneficiary designations, your family heirlooms might end up in the hands of distant relatives or distributed by the probate court rather than with your close loved ones.
To prevent this, ensure your beneficiary designations are current, particularly for tangible assets such as personal property. Assigning valuable assets individually can help avoid potential disputes among heirs.
A personal letter or memorandum can also be appended to your will for additional legal support and to ensure comprehension of your intentions. Including a self-proving affidavit can further strengthen the validity of your choice.
There are no set criteria for designating your beneficiaries. Some designations may be sentimental, while others may be more practical in nature. Here are some tips that can guide you through deciding what heirs should inherit your assets.
Selecting an estate attorney as a guardian in your will guarantees that your children will be cared for by a trusted person who shares your values, thus preventing possible probate court disputes.
When picking a guardian, consider their willingness and responsibility. You can even specify in your will a person you do not wish to have guardianship of your children, ensuring the kids' best interests are always prioritized.
Here are some things to think about when appointing a guardian for your minor children:
The executor, or personal representative, is the person who will be in charge of handling your assets. This should be someone you trust and who is responsible and organized—administering an estate involves a lot of paperwork.
You should talk to this person beforehand to ensure they are willing to accept the role. Let them know where to find important documents, such as your will, your life insurance policy, policies, and passwords for online accounts.
Here are some things to consider when naming an executor.
For most of us, our pets are members of our family. But under the law, pets are considered property. When you are writing your will, be sure to appoint a guardian to care for your pets.
Just as with any other parent or guardian for minor children, you should speak with your chosen pet guardians ahead of time to see if they are willing to take in your furry, scaled, or feathered family members.
It's important to consider what you would like to happen to your social media, the critical financial accounts that you use, and the websites you maintain once you're gone. Ensure you share relevant login information, such as passwords or security questions, with the appropriate people. A password manager can keep your sensitive data in one place, making it easier to transfer hands. You might also need to include your computer password and phone PIN for those you choose to access these accounts.
Here are two tips to help you write your will.
If you need to make changes to your will, you can amend it by adding a codicil that bears your signature and any relevant witness signatures set forth by state laws. You can also rewrite your will entirely if it needs more than a minor change.
Any changes you make to the executor or beneficiaries of your will must be noted among the updates. However, you don't legally need to inform these people that their role in your choice has changed. This information is not made a public record or known to them unless you die and they are still listed by name in your will.
Review your will periodically. This helps you stay on top of life changes.
Most states require that your will be signed in the presence of witnesses. Each state has different laws for how many witnesses are needed, who can serve as a witness, and other requirements. Be sure to follow your state's laws. If you change your will, ensure all copies reflect those changes and that the necessary witnesses sign updated documents.
Other rules for will validation are:
Just like you'd store precious gems in a safe, your will and essential documents need secure storage. This could be a fireproof safe deposit box or a secure digital vault if you opt for an e-will. Inform a trusted individual about the location of these personal items and documents, ensuring they can be accessed when needed.
A DIY will might seem appealing if you're an attorney or a fan of doing things yourself. It's like building your own furniture—it's free, convenient, and provides sufficient coverage for most individuals. Plus, it's easy to modify and more economical than hiring a lawyer.
However, creating a DIY will not always be straightforward. It requires precision and attention to detail. DIY wills are also more prone to errors and may not cover all necessary legal aspects. Plus, getting professional advice ensures your will is legally valid and comprehensive.
When deciding between a DIY will and professional services, consider cost, complexity, and familiarity with legal procedures. Weigh the pros and cons carefully, like choosing between your money on a DIY project and hiring a professional contractor.
Creating a will and planning your estate might seem daunting, but it can be simplified with the proper knowledge and tools. With this comprehensive guide, you can identify your assets and debts, designate beneficiaries, and learn to store your will securely. Remember, estate planning is not just a one-time task but needs regular reviews and updates. Whether you choose to DIY or seek professional help, your will should accurately reflect your wishes and safeguard your loved ones' future.
The most important thing is that you don't neglect planning your estate. Compare LegalZoom's different kinds of estate planning products.
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