Everything You Need to Know About Creating a Will
Nothing reminds us of our own mortality and raises all sorts of existential questions (and sometimes crises) than discussions about a last will and testament. For some, it’s just another piece of paperwork they already handled. For others, they know they need to do it but just haven’t. Maybe it’s a source of anxiety, maybe they’re not sure where to start. Regardless, now is a perfect time to get moving and do it.
Do I Need a Will?
Let’s answer this question very simply and directly — you need a will. It’s a common misconception that if you don’t have significant assets or dependents, then you don’t need a will. Not true. Estate planning is an item on everyone’s checklist for smart living, and a will is the foundation of it all. It’s what ensures that your estate is managed in accordance with the legacy you want to leave the world.
If you have minor children, legal dependents, or other people for whom you want to ensure are taken care of, the need for a will is compounded exponentially. So much so that if you, right now, have dependents but do not have a will, then you need to get on track to creating one immediately after finishing this article and designate guardians. Without a will, a judge decides.
Choosing a guardian for your minor children and other dependents is a conversation to have openly and honestly as a family. There are many factors to consider, and only you know what’s right for you, but regardless of what you decide, you have the obligation as a loving and responsible parent and caretaker to do this. Do not leave this world without making sure your children’s care is planned and known.
What Happens if You Die Without a Will?
Although there are instruments, such as living trusts or joint-ownership real estate, that can deter it, most people’s estate will go into probate when they die. Probate is a court procedure where assets are distributed. If you have a will, probate is often a relatively quick formality. But if you die without a will, a judge and your state’s intestacy (inheritance) laws will decide for you. That route can take months in the best of situations and years in the worst, especially if there are multiple parties with an interest in the estate.
And even if all those parties get along, mourning a loss is difficult enough without throwing in courts, attorneys, and trying to piece together what someone did or didn’t want. It’s unfair to leave loose ends that your loved ones have to tie up, especially when proper planning is so easy and accessible.
Decide What Type of Will You Need
One of the first decisions you’ll need to make is determining which type of will is going to be most appropriate for your situation. In the U.S., there are four types of wills that are most commonly used — simple wills, testamentary trust wills, joint wills, and living wills. We recommend consulting with an attorney to choose the one that makes the most sense for you.
Simple wills are just that — simple. They’re quite literally a list of your assets and possessions and accompanying instructions for how you want them to be distributed. When you die, the executor of the will is responsible for carrying it out. These are the easiest types of wills to create and are readily available online, including ours.
Testamentary Trust Wills
Testamentary trust wills are what you may associate with wealthy people or celebrity news because they’re the wills with terms for the distribution of assets to beneficiaries after certain conditions are met — age, education, marriage, etc. Creating these types of wills generally requires the assistance of an attorney.
Sometimes referred to as mirror, reciprocal, or mutual, joint wills are similar to a simple will except that they’re for married couples. Their purpose is to ensure that if and when one partner passes, the other receives the total of the estate. In some situations, they’re ideal. In others, where certain assets are not shared, they can be complicated.
A living will differs from the other wills in that it doesn’t contain instructions for after you die, but rather right before. This is where you provide the advanced directive that details how you want your last days to be, the medical care you receive, what happens to your body, and the details of your funeral — all extremely important details for your loved ones to know.
Other Types of Wills
What if you write your final wishes in a notebook or tell a neighbor? Do those acts count as a will? The answer is complicated and boils down to sort of and sometimes. Those other types of wills, such as statutory, holographic, and oral, that aren’t created and verified like the standard four types can be legally accepted but they’re also easier to contest in probate. It’s better to just do it the right way.
Do You Need a Lawyer?
It’s generally a good idea to have everything reviewed by an attorney who specializes in estate planning to make sure everything is done correctly and in accordance with the law. It would be tragic for your final wishes to end up in long, drawn out court proceedings because of a paperwork error.
The cost and complexity of making a will is generally in line with the complexity of your estate. If you don’t have many assets, a basic will should suffice. If your net worth is large and you have a vested interest in multiple, international corporations, your will is going to be much more complex. Regardless of your needs, cost should not be a deterrent to creating a will.
Many attorneys offer will-preparation and review services as an all-in-one package that’s both reasonable and affordable. If you’ve worked with a particular attorney on other matters, ask if estate planning is a service they offer. Your accountant or tax preparation person may be able to recommend someone. And ask your family members, you can even make estate planning a family-wide conversation.
The Postage also offers estate planning services and attorney support for Texas residents. Learn more information about our will builder and attorney support here.
Creating a Will Step-by-Step
The process of creating a will is rather simple. It is, quite literally, a formal legal document that describes your estate instructions. An attorney can provide an appropriate template, and there are also many websites that provide starter documents. If you go that route, make sure that you’re selecting what’s appropriate for the laws in your state.
Step 1. Name an Executor
The executor of your will is the person who carries out its instructions upon your death. This can be an attorney, friend, or family member. It’s your choice, and it’s an important decision. Inform the person and brief them about what’s contained in your will.
Step 2. Identify the Beneficiaries
Your beneficiaries are people to whom your assets will be distributed. Oftentimes, these include children, spouses, other relatives, and friends. You don’t necessarily need to inform them of the will’s contents prior to your death or even notify them that they’re a beneficiary.
Step 3. Decide How to Distribute Your Property
This is the big one for a lot of people — who is getting what. Money, jewelry, real estate, grandma’s dishes, any physical or material object that you want to leave to a particular person, now is the time to make those decisions and put them in writing.
Step 4. Name a Guardian
If you have minor children or dependents, this is one of the most important decisions of all. It’s obviously a very personal choice everyone needs to make for themselves, and that’s the key here — you have the obligation to your dependents to make the decision.
Step 5. Execute Your Will
This sounds big and fancy but all it really means is that you’re signing your will. You’ll need at least two witnesses present and it’s best if they’re not beneficiaries. This creates validity and helps to avoid problems later on.
Step 6. Store It Safely
Your will is one of the most important items in your estate planning documents and it needs to be properly and safely stored in a known but secure location. Again, make sure your executor is aware of where it is.
Step 7. Routinely Review
Finally, periodically review your will. As assets change, or children are added or grow up, it’s a good idea to keep everything current. Informing your executor when changes are made and creating a documented history of updates can help form a complete picture of your desires.
Account for Digital Property in Your Will
One thing that’s becoming increasingly common in will preparation is not only deciding who gets the family heirlooms, but also how to distribute and manage digital assets. Digital music, currency, photos, and other virtual items of value are now part of the conversation people are having with their estate planning professionals.
You can include digital assets in your will the same way you would physical objects. However, know that digital ownership laws will often prevent you from willing your online service accounts such as email and social media. In other words, you can’t give someone ownership of your Facebook account because you don’t own it, Facebook allows you to use it in accordance with their TOS. Regardless, including login credentials for those accounts as part of your estate planning can be extremely helpful for loved ones.
Storing Your Will
Once you’ve created your will, keep it stored with all your other important documents. Make sure that its physical location is known to the executor. And while some states require a physical copy of the will in order to be legally recognized, many people create electronic copies of their will to have as a backup. Storing it on a secure server completely eliminates the risk of it being lost — accidental or otherwise.