Most adults own something. Whether that’s a house, a vehicle, valuable pieces of jewelry, or pets. If you don’t want the state to decide where your assets go when you die or, more importantly, who will be in charge of your children and funds owed to them, then you better draw up a will. Let’s discuss writing a will.
What is a will?
A will is a legal document that states your wishes regarding what happens to your assets/property when you die and who is responsible for caring of minor children. In the will you leave instructions that an executor (whom you choose) carries out. The executor should be an individual or corporate fiduciary who you trust and who is competent to perform the required duties.
An executor is charged with the following duties:
- gathering the assets of the estate
- probating the will
- filing tax returns
- paying taxes and other debts of the estate
- providing support for the beneficiaries
- settling the deceased’s business interests
- collecting benefits and income due to the estate
- filing an accounting with the probate court
- distributing property to intended beneficiaries
- closing the estate
A will does not become legally enforceable until you, the creator, dies.
Why do I need a will?
Because you don’t want the state deciding where your assets go.
If you die without a will in place, the state will decide how your property is distributed. This can include bank accounts, real estate, and any other assets you own. If someone dies without a will in place, this is referred to as dying intestate.
There are variations among states as to how courts distribute an intestate’s property. Typically, if you are married your spouse is given primary consideration. He or she generally receives 1/3 to 1/2 of the estate if there are living children or parents of the deceased.
The remaining amount is then typically divided equally among all the children of the deceased. If there is no surviving spouse, then all the children usually inherit equal shares of the entire estate.
If a spouse survives but there are no children, the parents generally share the estate with the surviving spouse. Brothers and sisters usually come next in line, and so on. If you are single with no children, it all likely goes to your parents.
Whatever your situation, the state will decide what happens. And this process (called probate) can take a very long time. If this idea doesn’t sound all too appealing, then writing a will is for you.
Because you don’t want the state deciding who raises your children.
In your will you can designate a person (guardian) to care for your children if you die before they become legal adults. You can also designate a property guardian or trustee to manage your money for your children until they reach adulthood. You can appoint one person to act as both personal and property guardian, or choose two people to carry out the separate roles.
If you and your partner both die without a will, the state courts and social services appoint someone to raise your children. This may not be the person you had in mind.
Because you don’t want stress in the family.
Writing a will also ensures no tension occurs within your family after you are gone. Without a will, you may have relatives arguing over your possessions and everyone may want input on what should happen to your assets. Sure, the state can be to blame if Aunt Beatrice doesn’t get that antique tea set she loved, but what happens when she asks for it and Aunt Lucy also says she wants it? Drawing up a will ahead of time will lower the chance of strife between family members.
Because you are part of a blended family.
Blended families can benefit greatly from a will. For example, Daniel is married but brought two children into the marriage from a former relationship. He can dictate in his will that he would like half of his assets to go to his former partner, whom has equal custody of their children, and the rest to his spouse.
Because you are unmarried, but live with your partner.
Unmarried couples also need a will. The state will only recognize relatives, so if one partner dies, none of their possessions will go to their surviving partner. This could be devastating emotionally and financially.
Let’s say the deceased partner owned the home they were both living in and the surviving partner was simply paying a monthly (non-contractual) rent. The surviving partner has no say in what happens to the house he/she is currently living in. With a will, the homeowner can state the house is to be left to the partner versus it automatically going to his/her parents.
Because you love your pets.
And what about Fido? For example, Jane is a single woman with no children but has a dog she loves more than anything. Are her parents equipped and capable of taking care of Fido if something suddenly happened to Jane, or would the best friend who pet sits during vacations be the best person? This is something you can dictate in your will.
Because you want to contribute to a charity.
Many people will state that they would like a portion of their assets to go to a favorite charity organization in their will. It’s an easy way to contribute to a good cause.
» Learn more: Using Life Insurance to Help Your Favorite Charity
In addition to naming asset distributions, a will can also be used to donate your organs, specify funeral arrangements, and state preferences about life support by creating a living will. I want to advise you to talk with loved ones about these requests ahead of time as well, just in case your will isn’t discovered until after your funeral, which can happen.
Advantages of a Valid Will
- avoid intestacy laws
- choice of executor
- distribution of property to chosen beneficiaries
- transfer of property to charity
- maximum advantage of marital deduction
- direct source of property to pay death taxes
- designation of guardian for minor children
Another reason to have a will is to ensure no tension occurs within your family after you are gone. Without a will, you may have relatives arguing over your possessions and everyone may want input on what should happen to your assets.
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What doesn’t a will cover?
Wills generally cover the bulk of your assets, but some factors trump wills.
Living in a community property state can affect how wills are recognized. Life insurance policies also trump a will.
As an example, if you pass away and your will states you want your life insurance payout to go to your daughter, but your life insurance policy states your ex-spouse as your beneficiary, the payout will be going to your ex-spouse. This is just one example as to why reviewing your financial portfolio annually and with every big life event is so important.
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According to Investopedia, other items that are not covered by a will are retirement assets, assets owned as joint tenants with rights of survivorship, and investments accounts that are designed as “transfer on death”.
How do I create a will?
There are a few things to know before writing a will.
- Be sure you use your full name even if you are known by a nickname. Your nickname can be in parentheses.
- When you decide who you would like to be your will’s executor, talk to them about it first.
- Think of at least one alternate executor in case your primary is unable or unwilling to serve at the time of your death.
- Put together a list of your assets that you want noted in the will.
- Decide if there are specific assets you want to leave to specific beneficiaries.
- Put together a list of the names of your beneficiaries and your relationships to them. Decide to whom assets pass to if a beneficiary dies before you.
A basic will can be made inexpensively on your own online or you can hire a lawyer. If you have a more complicated estate, be sure to work with an attorney who is familiar with your state laws.
When preparing to create a will it’s important to know that:
- In most states, you must be at least 18 years old.
- It must be written in sound judgment and mental capacity.
- The document needs to clearly state that it is in fact your will.
- You need to name an executor who will ensure the wishes stated in your will are carried out.
- Notarizing a will is not required, but you need to sign it in the presence of at least two witnesses.
Can I change my will?
Yes, you can change or revoke your will at any time before death. If you want to make minor changes to your will, you can do so by writing a codicil. A codicil is a modification of the will. One or more paragraphs may be revoked or amended, leaving the rest of the will intact. A codicil must be signed with the same requirements as the original will.
If you want to revoke your will in its entirety, you can do so a few different ways. The most common way is to write a new will and declare in it that all prior wills are revoked. Example of wording: “I, Maria Smith of Hennepin County, Minnesota, declare this to be my last will, hereby revoking all former wills and codicils.”
In some states, wills may also be totally or partially revoked by an act that causes invalidation under state law. Divorces, marriages, and children can cause invalidation.
If a divorce occurs that is not planned for in the will, in some states the entire will is revoked. In other states, only the provisions of the will that pertain to the former spouse are revoked.
If the creator of a will gets married after writing the will, it may be revoked entirely unless it specifically contemplates the marriage, or the new spouse is entitled to the equivalent of an intestate share.
Children born or adopted after creation of the will that are not anticipated for in the will may also cause the will to be revoked, or these children may be entitled to an intestate share unless the property in question passes to a surviving spouse or the omission of the after-born or after-adopted child is intentional.
While generic forms are helped to develop a will, no two wills should be exactly the same. People often have different planning objectives, needs, desires, and assets. Additionally, the requirements for wills vary from state to state. If you relocate in retirement or at any point in your life you should have an attorney review your will to make sure it is still valid and enforceable in your new state.
Photo credit to: Álvaro Serrano
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