Updated July 12, 2019. A will isn’t something that we’re all dying to write, since writing one means acknowledging that we’re all going to die someday.
There’ll come that time when we mortals pass on from this world, and that means having to leave behind all the stuff, property and money you’ve accumulated over an entire lifetime. And much like your debt, you can’t take your things with you into the afterlife.
So who do you give it all to? Short of donating everything to charity or buying a cemetery plot big enough to bury you and your valuables, you’ll need to bequeath your belongings to some living people or animals, and that usually involves writing up a will so that everyone you choose to inherit your possessions knows exactly what they’re getting.
Why you actually need a will
A will is a document written while you’re alive expressing how you wish your property and assets distributed to your heirs.
Without a will to express your wishes, your friends and family will be sitting around with a lawyer trying to hash out who gets what, domestic squabbles will ensue, bridges will be burned, and loved ones will be estranged forever, all because you didn’t specify your wishes.
Okay, so that’s quite an exaggeration. But you’d still be leaving your survivors an unnecessary amount of responsibility and other assorted troubles figuring out the bulk of your estate if you don’t take the time to plan when you’re alive, well and kicking -- not after you’ve kicked the bucket.
Despite such a dire outcome, more than 64 percent of Americans don’t have a will, according to a Harris poll, with 27 percent of participants expressing no time to write one.
Wills aren’t just for the rich and famous. Yes, you need a will, too, no matter what your income is or how much you have in the bank. Here’s what to know about writing (or recording) yours.
What happens if you don’t have a will
When you have a will, you’re the testator, the person who decides how your estate will be managed, who’ll handle it, and how/where your belongings will be dispersed. If you die without a will in place, you’re not only deceased, now you’re intestate. What sounds like some kind of awful gastrointestinal disease -- or the word interstate without an R -- is actually what happens when you leave no record of how you want your estate and assets distributed.
"Beloved parent, spouse and intestator" doesn’t really have such a nice ring on your epitaph, does it?
If you’re single with no dependents or next of kin, a will may not be so important. But if you have minor children, a will, for example, can dictate who you wish to be their guardian.
If you’ve set up any trusts for your children, which state specifically how your assets will be distributed to them (like a special fund to pay for their college), a will is advised to facilitate the transaction of the trust. The future of your monetary accounts -- everything from 401(k)s, IRAs and other retirement funds – to your life insurance policy (plus cash holdings from any whole life policies), needs to be stipulated in your will.
But generally, a will is a must if you’re married with children, or you have friends or other family members you’d like to see inherit your estate. They are your beneficiaries, and the process of transferring your property is called probate, managed by an executor of your choosing -- ideally an attorney or someone close to your family but with the objectivity to oversee the proceedings without getting personally or emotionally invested.
Pass on the will without naming an executor to oversee the process, and your estate gets handed over to the state in a very informal process that sees a court-appointed administrator, a veritable stranger to your family who’ll divide up your assets according to state laws. Your entire estate will end up being handled by someone simply accepting it as an assignment, and that could result in them acting against the best interests of your estate, your descendants, and your memory.
There are different types of wills
Several types of will exist, but only one really holds up in court if it’s contested in any way. That will is a testamentary or self-proving will; another name for a last will and testament, it’s the conventional document signed in the presence of witnesses that’s legally binding.
There are holographic, handwritten wills signed without witnesses. About half of the states in the U.S. recognize holographic wills, the other half doesn’t, so your best bet is to always have yours officially typed and signed with other witnesses present.
An oral will is spoken to witnesses, but without any written documentation, a judge and court won’t take it seriously. Then there are living wills which mainly specify your medical wishes should you be unable to make decisions, like if you were on life support and not conscious to decide what type of care you want. Living wills don’t deal with distribution of your assets.
How to set up your will
Taking the steps to draft a legal will can be as overwhelming as knowing who your assets will go to. Should your spouse get the main residence and the vacation home, or should the latter property be sold? Have your children been gifted enough money equally? Is there any portion of your net worth that will be donated to charities or nonprofits, or does it all go to your family? Who’ll be the beneficiary of your baseball card collection, or that antique heirloom furniture?
Decide which way to go
It may be tempting to just write your own will and forego the legal fees of hiring an attorney. You’re not required to have an attorney, but one can help you navigate the sometimes complex estate planning maze, like if you have unusual assets that need sorting out. (For the sake of proper planning, consulting a financial advisor before the will writing process may also be a good idea.)
You can still go the do-it-yourself route without an attorney by utilizing one of many online will writing services, like Willing.
Sort of like a TurboTax for wills, the site walks you through the steps of writing your will without any confusion. First, it’ll ask you questions, like "Who would you like to receive your property?" As you narrow down your answers, organizing your plans on the site’s personalized dashboard makes it easy to create primary and backup plans for the handling of your property and assets, who your beneficiaries are, and how you’d like your medical care and final arrangements carried out.
Willing.com generates everything you need to type, so you just enter your info, gather and print out your documentation, sign, and you’re done.
Gather your information
You can’t write a will if you don’t know what to put in it. To start, make a list of all your assets: any real estate you own, bank deposit accounts, active investments, special savings or retirement funds, valuables, furnishings, automobiles or other personal belongings or property with monetary value.
You’ll also want to take note of any current debt you have, like outstanding mortgage, auto or student loans, or credit card debt. Don’t worry, your will can be updated at any time, so if you pay off these debts in time -- or take on any new debt -- you can update the information in your will.
If you have life insurance, it’s up to you if you’d like it listed in your will. Life insurance payouts rarely go through the probate process, and if our beneficiaries are already taken care of and covered, mentioning it in your will isn’t really necessary, yet still optional.
Read more about how life insurance works with wills and trusts.
List your beneficiaries
Assemble a comprehensive list of the people you’d like to be your beneficiaries; their names, addresses, birth dates and contact information. It’s okay if each one is an immediate family member who lives under the same roof as you; for the purposes of your will, you need to have this information ready.
If your children are underage when you write your will, it’ll be time to select who their guardian will be. Without a will, the court will appoint one for your family.
You’ll also want to know who you’ll name as your executor. Pick someone you trust to carry out your wishes when it’s time to administer the will. Married folks may pick their own spouse to be their executor, but it can be anyone you pick, like a friend or neighbor. (Just make sure to ask first.) It’s perfectly acceptable to name an attorney as your executor; just make sure it’s someone you trust.
Be prepared that your executor may want to receive compensation for taking on the responsibility, so discuss a rate you both agree upon and document it in the will. Banks or attorneys often charge fees between 2 to 4 percent of your total assets.
Follow the right flow
"I, Mr. X, of X Street in X City, am over 18 years of age, of sound mind and body, and not writing this Last Will and Testament under duress or coercion." It sounds cliched, but that’s actually something similar to what you’ll put in your will as you write it. Remember that your will doesn’t have to be written in one sitting; it could take weeks or even a few months to gather up all the information you need.
Make sure to include your birthdate and Social Security number in your will, and that it reflects the most current version of the document. You can write your will completely in private, but remember that you’ll need witnesses to sign -- ideally, people who’ll be living to testify in court if there are problems with the will after you’ve died, or if it’s contested in any way. Like choosing an executor, ask a few trusted people to be your witnesses; depending on state laws, you may need two or even three witnesses minimum. Other laws may require you to have your will notarized.
Witnesses must also be "disinterested" parties who aren’t beneficiaries to your will, since it could create a conflict of interest.
Your will is your own personal document, so you’re free to include any additional writing to express your wishes. Kind of like how many weddings see brides and grooms write their own vows, you can attach a letter to the will addressed to a child, spouse, guardian, etc., with explicit instructions on how you want your assets managed, or how you’d like your child raised until they’re 18.
Review, revise or revoke
When you’re done writing your will, find a safe place to put it, like a safety deposit box at the bank, or a safe place in your home, preferably where pets, kids or the elements can’t get to it. At the least, store the original somewhere protected, and keep a copy for yourself accessible if you ever want to review it from time to time.
It’s important that you do so, since wills are never set in stone and can be revised as needed. You could write your will in 2017 and live another 70 years without any changes needed to the document, but there’s a possibility you may need to.
Life changes. New beneficiaries, like new children or grandchildren, come along, others may die, assets may change, plans may change, and those need to be updated as needed. Revisit your will every four or five years, if you can.
Making amendments or updates to your will -- or revoking it altogether -- is a legal process called a codicil. It proves and documents that you’re still of sound mind when you made the changes. (Simply crossing out one or two lines in pen and revising them on the original won’t hack it in court.) Some experts maintain that drafting a new will altogether is the better idea.
Writing your will can impart the peace of mind you need to know your beneficiaries will be taken care of when you’re gone, and that the assets you’ve worked hard to earn will go to the right places.
Once it’s written, and all this business about what happens after you die is said and done, get up and go do what’s important in the here and now -- live your life.
Image: Ken Mayer