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 writing a will should be high on your to-do list.
What is a will?
A will is the most basic, yet most critical, estate planning document.
After you die, what happens to your property? Children? Pets? In a will, you state your wishes.
A will lets you:
- Provide a plan for how you want your assets and property distributed.
- Nominate a guardian to care for your minor dependent children (if there is no surviving parent).
- Leave specific assets to specific individuals.
- Leave money to charity.
- Provide income for the care of a loved one with special needs or a disability.
- Provide a plan for your pets.
- Minimize or avoid estate charges.
- Describe how you wish estate settlement costs are to be paid so they are not charged against particular heirs or beneficiaries.
In the will, you nominate someone to carry out your wishes. This is the executor.
Be sure to talk to this person before drawing up your will. 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?
If you die without a will, this is called dying intestate. A court-appointed administrator will compile any assets in your name, pay any liabilities, and distribute the remaining assets to those parties deemed as beneficiaries.
How assets are distributed is determined by the intestate laws of your specific state. In most cases, your property is distributed in split shares to your “heirs,” which could include your surviving spouse, parents, siblings, aunts and uncles, nieces, nephews, and distant relatives. Generally, when no relatives can be found, the entire estate goes to the state.
This court process takes a long time and can get expensive very quickly. Expenses can include court costs, attorneys’ fees, appraisal fees, and administrative costs. These costs will reduce the value of your estate and what your heirs ultimately receive.
In addition to paying fees you and your heirs likely didn’t intend to, intestate can cause a number of other problems. This leads to a number of reasons why you want to have a will.
You Need a Will If…
You own assets.
If you die without a will, what happens to your stuff? Who is in charge of making these decisions?
There are variations among states as to how courts distribute an intestate’s property. Below are typical examples of how a state’s intestacy laws will divide estates.
- If you leave behind a spouse and children, your spouse generally receives ⅓ to ½ of the estate. The remaining amount is then divided equally among the children.
- If you leave behind a spouse and no children, but living parents, then the parents generally share the estate with your spouse.
- If you leave behind no surviving spouse but living children, the children usually inherit equal shares of the estate.
- If you leave behind no heirs, your estate may be handed over to the state.
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.
With a will, you also state exactly what you want to have happen with your assets.
Want to use the money in your savings account to pay off your vehicle to give it to a needy friend? Your will can state these wishes.
Do you want all your clothes to go to your best friend? Your will can state this.
Do you want to contribute 50% of your positive net worth to your favorite charity? You can state this in your will.
You have children.
Without a will, your children are on deck to inherit everything after your spouse. But, again, do not leave this to chance. If this is your wish, put it in writing in your will so there is no room for error. You can also designate a property guardian or trustee to manage your money for your children until they reach adulthood.
In addition, if there is something that you don’t want one of (or all of) your kids to inherit, then that needs to be in writing.
The most important reason to have a will if you have children is to name a guardian. The named guardian will be responsible for raising your minor children should their other parent be unable to.
It’s important to routinely update your will to include any future children. Consider including a provision for future children to ensure that none of your dependents are left out of your will, even if you die before your will is updated to reflect his or her existence.
If you die without a will and the other parent isn’t an option, the guardianship decision falls to the courts. Your preferred option may not be who the legal system ultimately chooses; leaving the person you truly wanted to be the guardian to go to court to fight for custody. The whole situation can be avoided by specifically naming this person in your will.
You don’t want tension among family members.
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.
Without a will, your spouse is likely to inherit everything. But don’t leave this to chance.
In addition, if there are certain things you rather pass on to someone other than your spouse, a will is your opportunity to make this known.
For example, in many states, if you die while married and have a child from a previous marriage, your spouse receives everything and your child receives nothing. With a will, you can make sure your child from your previous marriage inherits assets as well.
Keep in mind that any asset that is also in your spouse’s name cannot be left to someone else. For example, if your vehicle is titled in both you and your spouse’s name, you cannot leave the car to your sister.
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, who has equal custody of their children, and the rest to his spouse.
You have a partner, but are unmarried.
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.
You are worried about 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.
You care about 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
End-of-Life Requests in a Will
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.
It’s advisable to talk with your 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.
- 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
See what you’d pay for life insurance
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.
» Compare: Term life insurance quotes
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”.
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, certain circumstances force the revocation of a will. These circumstances can include:
- The birth of a child
In the case of a divorce, some state laws call for revocation of the entire will. 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.
How do I create a will?
If you have a simple estate, creating a will can also be quite simple. You don’t need an attorney either.
There are many online services that allow you to create a will for free for a small fee. You could also download a free template, fill it out, print it, and sign it.
Most states require two witnesses to be present when you sign the will. If your heirs and beneficiaries later contest the will in court, one or both of these witnesses may be called to describe your state of mind during the will’s execution.
If you have a complex estate or own a business, it’s advisable to hire an attorney to help you create a will. An attorney’s knowledge and expertise can ensure the will is valid, meets specific state requirements, and clearly expresses your wishes.
There are a few things to know before you start:
- 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.
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.
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.
Be sure to keep your will in a safe place and make sure a beneficiary or the chosen executor knows the location and how to access it.