A legal will is one of the most important estate planning documents you can have. A carefully considered and well-prepared will can provide peace of mind for your loved ones, who will need a plan to handle your assets after your death. All too often, this is something that’s overlooked because it requires uncomfortable conversations or simply doesn’t seem necessary while many other obligations demand our immediate attention. But creating a legal will before it’s needed is an incredible gift to leave behind for your loved ones.
There is more than one route to a legal will. Increasingly, people with simple estates are choosing to create their own wills. The growing number of templates available on the internet can make this option both accessible and easily affordable. However, legal counsel from an estate planning attorney can both help you decide if writing your own will is the best option and what other options you may want to consider. People live such varied and diverse lives, there’s no one-size-fits-all solution for estate planning.
What Is a Will?
At its most basic level, a will is a signed document that states what you want to be done with your estate after your death. While this is often associated with a distribution of personal property, such as heirloom jewelry or a house, a will can also be used to establish guardianship of minor children, provide for pets, establish an advanced healthcare directive for your medical decisions, or make charitable gifts from your estate. While there is no specific language necessary when writing a will, the requirements of what makes a will valid are specific and may vary by state.
Who Can Prepare a Will?
A will can be written by the testator themselves or prepared by an attorney. Writing your own will using a template found from a reputable source could be a reasonable option if your situation is relatively simple. If you decide to write your own will, take time to research your state’s requirements for a legal will and naming guardians for minor children. This might include talking with an estate planning attorney to ensure your will is comprehensive.
Consider working with an estate planning attorney to prepare your will if your situation is more complex. Situations in which more legal counsel could be beneficial include naming primary guardians and secondary guardians for minor children, a complex business; setting conditions for your gifts; addressing a potential for dispute among inheritors; or managing additional people in your care whose continued care is a major consideration for how your estate is distributed. Legal counsel on your options can give you peace of mind to know you have considered everything necessary in making your plans.
What Should Be in a Will?
As stated above, there is no legal requirement for certain language in a will; however, there are some items that should be considered regardless of whether you or an attorney prepares your will. While this isn’t comprehensive, these items will get you on the right path.
- Know your assets.This includes real estate, finances (bank accounts, investments, etc.), and property.
- Account for taxes.The federal estate tax is for estates valued at $5.43 million and above. Most people have a more modest estate and will not be taxed at the federal level, but the state tax varies. It may also be necessary to have a final income tax filing.
- Name a personal representative who can oversee the distribution of your estate.
- Name beneficiaries. Use full names so identities are clear. Consider who you would like to receive gifts. Be specific in naming the gift and the beneficiary.
- Name guardians for minor children.Again, use full names so identities are clear. Consider including contact information. Some states may even require a secondary guardian should a primary guardian be unable to care for the children.
- Appoint someone to care for surviving pets.
- Ensure the signatures of yourself and your witnesses are clear.Include the date.
What Makes a Will Valid?
A will is a powerful document, but it only takes a few things to make it valid.
- The testator (person writing and signing the will) must be an adult of sound mind and judgment or have the capacity to sign a legal document.
- The will must be signed by the testator.
- Adult witnesses need to sign the will as a testament to the testator’s capacity and decisions. While it can vary between states, most require two or three witnesses.
- Witnesses cannot be named in the will to inherit anything from the estate.
A will does not need to be notarized for it to be valid, but taking the extra step of having a notary public notarize the will can make things easier in the future. Also, an attorney isn’t needed for a will to be valid. However, it can be extremely beneficial to have legal counsel as you go through estate planning.
Types of Wills
The unique needs of the testator will determine what type of will is appropriate. So when you consider writing your own will, it’s good to know the four main types of wills.
- Simple will:A simple will is probably what comes to mind when you think of a will. It’s the most common do-it-yourself will template. It’s a simple statement of what you would like done with your property. You can also use a simple will to name guardians for your minor children. Since there’s no required verbiage for a will, this can be as its name implies: simple.
- Testamentary will:A testamentary will places your assets in a trust and names a trustee to handle the trust. If you have children who are minors or others in your care who may need additional planning for continued care, this might be an effective way to ensure they are taken care of.
- Joint will:A joint will can be used when spouses want the other to inherit everything. Once signed, the terms of the will, including executor and beneficiary, cannot change. This is the least flexible option.
- Living will:A living will is a way for you to determine medical treatment in case you become incapacitated, such as deciding when to turn off life support or if organ donation is something you want. This can also name someone to make medical decisions for you.
Estate planning can be complex and at times emotional. Warren Allen’s experienced estate planning attorneys can ease the burden and help you make the decisions necessary to ensure your loved ones are taken care of.
