What is a will and do I need one?

A will gives instructions for your estate to follow after you die, including how your assets are distributed and who you nominate to be the guardian of your kids.

A will is a type of document that determines how your property is distributed to your loved ones after you die. Also called a “last will” or a “will and testament,” a will describes who gets to administer the estate, which assets go to whom, and who has the right to care for your minor children if your spouse is no longer alive.

With a will, you can declare that specific property is to be distributed to each beneficiary. You can also state that different beneficiaries receive different proportions of the remaining value of the estate. Wills also contain instructions for managing your property, such as putting it into a trust or excluding certain people from receiving any of it.

While not everyone needs one, a will can make the inheritance as painless as possible for your survivors. Without a will, your assets will go into probate, and a court will decide which of your survivors is entitled to the property, which can take years of expensive wrangling. By contrast, a will is a contract, and its terms are binding. It’s one of the best ways to ensure that your loved ones are taken care of after you die. (Our partner Trust & Wills can help you create a legally valid will in minutes. Use promo code "protectmylegacy" to get $10 off your estate plan.)

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What goes into a will?

Beyond simply disbursing assets to your loved ones, the will document contains a lot of information to be followed after your death. It nominates people for certain responsibilities and defines your beneficiaries. It could list some types of property, but it doesn’t necessarily have to state anything about your assets.

But the will should definitely contain the following items:

Your declaration

This part of the testament is simply a statement from you that you affirm the contents of the will and that you signed it on your own volition when you were of sound mind.

Information about your family

One of the first sections of your will is about your immediate family: your spouse and any children you have. If you don’t list any specific beneficiaries, your spouse will be the recipient of any assets in your estate, followed by any children. You can also use this section to exclude your spouse – if your state allows it, and some don’t – or any children from receiving any part of your assets.

Nomination of the executor

The executor makes sure the will is enforced after you die. He or she doesn’t have to be a lawyer; in fact, you can nominate anybody you want to be an executor, including a named beneficiary. You can also choose co-executors as well as successor executors if your first choices don’t pan out.

In addition to making sure that property is disbursed according to the terms of the will, the executor pays any outstanding debts using the value of the property and makes any necessary and beneficial decisions on behalf of the estate.

Any person you nominate to be an executor has the right to decline, and it won’t affect his or her entitlements if he or she is named as a beneficiary. If all executors and successor executors decline, then the beneficiaries named in the document will be asked by the court to choose an executor.

If your estate has multiple executors, they must be in unanimous agreement when adjudicating disputes between claimants when no specific instructions exist.

Beneficiaries

The beneficiaries are the people who receive your property. For the most part, your beneficiaries can be whoever you want. You can specify your family, friends, or an organization whether charitable or otherwise.

The exception is when you live in a “community property” state, which comprise Alaska (if you and your spouse opt in), Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. In community property states, your spouse is entitled to receive your property after you die.

Another exception: you can’t name your pet as a beneficiary.

Nominations of guardians of minor children

As with the executor, the will specifies who takes care of your minor children if your spouse predeceases you. Any person who is nominated has the right to decline.

Review of debts

Because your estate will have to pay off any creditors with its funds, the will may describe what debts you owe, to whom you owe them to, and what assets will be used to pay them. Such debts include medical bills, attorney fees, and funeral expenses.

No loved one or beneficiary is responsible for paying your debts unless they have explicitly co-signed a given sum. However, the creditor gets to be paid first; that means if you inherit a house, you’re still obligated to keep paying outstanding mortgage payments.

Taxes, including estate tax when applicable, as well as any accumulated interest and penalties, will also come out of the estate. Additionally, you may specify that debt owed to you by your beneficiaries be subtracted from the value of your bequest to the respective beneficiary.

Specific bequests

Unless you declare any specific bequests, the value of your estate will be divided up into proportional shares to each beneficiary regardless of the item. But specific bequests ensure that certain items of property go to whom you want them to go to. That means you can will your PlayStation to your young cousin or your art collection to a museum, leaving the remaining property to the other beneficiaries to choose from.

Two witnesses and a notary

Typically, you will need to get the signatures of two witnesses and a notary in order for your will to be valid. Other states may have different rules about this, which is called “proving” the will.

Funeral arrangements

Do you want your body to be cremated and your ashes dumped into the Mariana Trench? You can specify that in your will (and even set aside funds to cover the cost out of your estate), but in many cases, your will won’t be opened until long after the funeral has already ended.

For that reason, funeral arrangements written in a will aren’t necessarily binding. If you have specific desires for your funeral, make sure you communicate them to your family in some other way.

Assets not bequeathed by the will

Many types of assets are not distributed via a will but instead have their own designated beneficiaries apart from those listed in the will. These assets include bank accounts, retirement accounts, and insurance benefits. (We’ll get into such property later.) However, to make it easy for your loved ones, you can reference those assets in the will and testament itself, even though they won’t be directly governed by the terms of will.

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Takeaway

A will is the best way to ensure your property goes to your loved ones after you die.

Can I write my own will by myself?

In many states, you can write your own will as long as you’re of the age of majority and have “testamentary capacity.” Even a will that says nothing more than “everything to my wife” can be valid as long as it was properly witnessed and notarized or proven by probate court.

You don’t need to use legal language to write a will, but it’s better if you do; your survivors may use any ambiguity in the terms of your will to contest the claims of others, creating unnecessary family division that could ultimately be decided by an expensive and prolonged court battle.

You can also get a service like Trust & Will, which lets you submit your information online and generates a complete will that only needs to be witnessed and notarized.

Online options are more affordable than getting a lawyer, but a lawyer may be best for large and complex estates, or if you have a lot of children. A will written and administered by a lawyer can save your survivors a lot of headache and even a lot of money if your estate becomes tied up in probate court.

Who are the beneficiaries of my will?

There are several different types of beneficiaries in a will and knowing their rights can help you determine who should be which type.

Primary beneficiary

This is the person who receives your entire estate’s property minus any specific bequests. In community property states, the primary beneficiary has to be your spouse.

Primary remainder beneficiaries

These are anyone you want to receive a portion of your assets if your primary beneficiary is no longer alive. Most people choose their children, but you can choose anyone you want.

Trusts

Many people elect for some or all of their assets to go into a trust upon death. This allows a trust administrator, named in the will, to administer the assets according to your wishes. You can give specific instructions, such as what age the beneficiaries of the trust are allowed to access the property in it.

Trusts must be used for children under the age of majority, and such trusts are governed by the Uniform Gifts to Minors Act (UGMA) or Uniform Transfers to Minors Act (UTMA).

What if I have no beneficiaries when I die?

If you don’t have a will, didn’t list any beneficiaries, or your beneficiaries have all predeceased you, then your will has to go into probate. That means the court will decide which of your survivors are eligible to receive your assets. Usually, states have a tier system, called the law of intestate succession, where some surviving kin, like children and grandchildren, have a bigger claim to your assets than others, like your cousins.

What types of property can be bequeathed in a will?

Just about anything can be bequeathed in a will, from the largest item, such as a house or car, to the smallest trinket, as long as it’s not co-owned by another living person. Consider making an inventory of your assets when figuring out what types of property you want to go to whom.

Payable-on-death assets

As stated above, some types of property have their own beneficiaries regardless of the will, meaning they don’t go through probate unless the beneficiary has already died. These types of assets are called payable-on-death (POD) or transfer-on-death (TOD), and you should have designated a beneficiary when you received the asset. Payable-on-death assets include:

Payable-on-death assets do not belong to the state. They can’t be used to pay creditors and no part of them can be disbursed to other beneficiaries or survivors. When you die, the beneficiary becomes the owner of the account after he or she submits proof of your death, such as a death certificate.

Jointly owned property

If you jointly own property with another person, that person could become the sole owner of the property after your death regardless of the will.

If the jointly owned status is “jointly owned with rights of survivorship”, then the other owner automatically becomes the sole owner.

But sometimes property is jointly owned by “tenants in common”, meaning that you can still bequeath the part of the property owned by you to someone else, although the other tenants in common still retain their share of rights to the property.

What happens when I update my will?

You should update your will whenever you experience a major life event, such as getting married or divorced, having a kid, or when a named beneficiary or executor predeceases you. You may also want to update your will when your financial situation changes. Updating your will is called adding a codicil.

When you add a codicil to your will, you’re actually creating a new will and revoking the old one. In some states, getting married or divorced automatically revokes your old will, which effectively replaces it with a new one reflecting your new circumstances.

To add a codicil to your will, you’ll need two witnesses and a notary just like when you signed the will in the first place.

What’s the difference between a will and a living will?

A living will is a much different document than a will and testament. For one, living wills do not concern the distribution of property; they’re for entrusting certain people to make medical and surgical decisions on your behalf while you’re incapacitated.

Also known as an advance directive, one of the most common stipulations in a living will is “do not resuscitate.” Other directives include withholding CPR or preventing endotracheal intubation. People may want a living will when they have an incurable medical condition or for when they go into a coma.

Like a will and testament, a living will gives someone, called a proxy, the right to act according to your wishes. You’ll also need two witnesses and a notary for the living will to be effective.

However, unlike a last will, a living will can be reversed verbally if you suddenly come down with a medical condition and don’t have enough time to revoke the living will.

Policygenius’ editorial content is not written by an insurance agent. It’s intended for informational purposes and should not be considered legal or financial advice. Consult a professional to learn what financial products are right for you.

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Updated November 29, 2018
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