Let’s face it, many of us our in denial about death. In fact, I’m pretty positive I will never die, but there’s a good chance you might!
All kidding aside, the sad truth is, all of us will die someday, and we better be prepared.
Writing a will is an unpleasant task that can be even more heinous when you consider that you may need to pay a lawyer to help you. But the good news is, it is possible to write a will yourself.
Writing your own will saves you on lawyer’s fees, but you may also encounter some problems if you don’t have the right legal help. This article will tell you how to write a will, and the pros and cons of writing one without a lawyer.
Why is it Important to Write a Will?
Wills are important because they distribute your property, name an executor, name guardians for your children, forgive debts and more. They are usually typewritten legal documents that are signed and witnessed, but some states recognize other types of wills.
If you die without a will, state laws, known as intestate succession laws, will decide which family members will inherit your estate and the proportion they will inherit. A will prevents succession laws from taking over allowing you to decide exactly who will be getting your property and how much of it they will be getting.
Wills also cut down on family conflicts. Without a will, one family member may be fighting with another over how much property they deserve. Even with state law taking over, relatives may have unresolved feelings over what you would have wanted.
Making a will helps keep the peace among family member eliminating emotional battles over your estate.
What is Probate Court and When is the Probate Process Necessary?
Probate is a court supervised process of authenticating the deceased’s last will and testament. Wills must be filed with probate court after the death occurs. Relatives may also fill out an application or petition to open probate on the estate if they disagree with the terms of the will.
If there is no will, a probate process is still necessary to decide how the deceased’s remaining debts will be paid.
Matters may be taken to probate court if there is no will and there are disagreements about how the property should be distributed. This can be a lengthy and emotional process that can be avoided if a will is written.
The information presented here makes it apparent why it is so important to write a will. Nonetheless, statistics show only 42% of adults in the United States have a will.
How to Write a Will
There are several software programs you can use to write a will. Options include:
Some of these programs are free while others charge small fees. Either way, you will be able to save considerably as compared to paying for an attorney.
Once you have found the best software programs, here are the steps you will need to take.
Select Your Beneficiaries
Your beneficiaries are the people that will inherit your property. Be specific about who gets what.
When deciding how to distribute your property, be realistic. Give your possessions to those who need them most. You can also call friends and family members to find out if there’s anything they have their eye on. This will limit possible conflicts.
Choose an Executor
The executor is the person who will make sure your wishes are carried out. You can use an attorney or bank as your executor, but you may end up spending 2-4% of your estate’s assets on legal fees.
Alternately, you can use a friend and family member. Be sure to choose someone responsible. If you go this route, you should also expect to pay that person a fee, but it will be nowhere near as much as what you would pay a bank or attorney.
Pick a Guardian for Your Kids
If you have children, you should choose a guardian who will care for them if you pass away when they are still minors. It’s advisable to pick three different people so you have back up in the event that one of these people die or are not prepared to care for your children for any other reason.
Attach a Letter (Optional)
If you feel there’s anything more you want to say to your family or if you feel like you need to explain how you decided on the division of property, you can include a personal letter with your will.
Get it Signed by a Witness
You will also need to get your will signed by a witness. The witness may be called upon to testify if there are any problems with your will.
Witnesses can not include anyone who is named as a beneficiary in your will. They must also be 18 years of age or older.
Store it in a Safe Place
Once your will is written, store it in a safe place where it can’t be lost or forgotten about. A fireproof safe is a good option. Make sure someone in your family knows where the will is stored and how to access it.
Review and Update as Needed
If anything happens such as a death in the family, a divorce and so on, you may want to update your will. Make sure to revisit and update as needed.
Can I Just Write a Will on a Piece of Paper?
A will can be written on a piece of paper or it can be an elaborately typed booklet. However, it must meet certain requirements in order to be valid. These are as follows.
The Person Must Be of Legal Age
For the most part, states will consider anyone 18 and over to be of legal age. However, you may also have legal capacity if you have been lawfully married or have served in the military.
Testamentary capacity means the person must be of sound mind when he or she creates the will. They must understand the disposing of assets and who they are being distributed to.
A person has intent to make a will if he or she intends to make a revocable disposition of property in the event of their death.
A will must be voluntarily entered into and signed by the testator. A will executed by a person coerced into signing will not be considered valid.
Proper Disposal of Property
A will must properly dispose of the property distributing it among friends and relatives in accordance with the person’s wishes.
Signed Dated and Witnessed
The will must be signed and dated by the testator in front of two witnesses that are not named as beneficiaries in the will and are at least 18 years of age.
What are the Different Types of Wills?
There are mainly four different types of wills. These are as follows:
A simple will is what will first come to mind when hearing the word ‘will’. It decides who will receive what and name a guardian for minor children.
Testamentary Trust Will
A testamentary will places some assets into a trust for your beneficiaries and names a trustee to handle the trust. This is recommended for those that have beneficiaries as minors who should not be handling your assets on their own. With this type of will, you can also place conditions on inheritance based on age and other factors.
Joint wills are signed by two or more people and serve as a separate will for each testator. They are usually executed by spouses naming one spouse as the main beneficiary. The terms of the will, including the executor, the beneficiaries and other provisions can not be changed. This can be problematic if the surviving spouse experiences major life events that may affect their wishes.
Living wills have nothing to do with how your property gets distributed after you die. Instead, it chooses what medical treatment you will want if you become incapacitated. You can also name someone to make decisions on your behalf.
In some states, an advance healthcare directive combines a living will and a healthcare power of attorney or proxy so it’s important to become familiar with your state’s laws before writing a living will.
Pros and Cons of Having a Lawyer Write Your Will
If you are thinking of writing a will, you will need to decide whether you want to write it yourself or get an attorney to assist you. When it comes to pros and cons, here are some things to consider.
The main advantage of working with an attorney is that they will make sure all you I’s are dotted, and all your T’s are crossed when it comes to creating a valid will. If your will is not valid, it can result in legal and emotional costs for your family that could be avoided if you hire a lawyer in the first place.
On the downside, hiring a lawyer to help you with your will costs time and money. It is simpler and cheaper to do it yourself.
In general, it is best to hire a lawyer if your will is complicated. If you are making a simple will, software programs will walk you through giving you all you need to make a will that will be honored in the eyes of the law.
A Will vs. an Estate Plan
In most instances a will is enough to set forth the terms for distributing your possessions. However, if you have a large estate, you may want to go with an estate plan. The estate taxes in your state of residence will also help you evaluate whether of not an estate plan is right for you.
An estate plan goes further than a will. Not only does it deal with the distribution of assets, it also incorporates charitable giving and business succession. It may help your heirs pay less in taxes, fees and court costs.
An estate plan may include any of the following:
- Business Succession: You can use an estate plan to decide how your business will be handled after you pass away.
- Philanthropic Goals: If you wish to continue making charitable donations after you die, you can set the terms in your estate plan.
- Preparation for Incapacitation: Often times, an estate plan will include many of the terms set forth in a living will.
- The Handling of Your Children: While most wills name a guardian for the testator’s children, an estate plan includes more detailed options including what happens if both parents die. It can be especially useful in a blended family.
- Handling of the Estate: A estate plan is recommended for those who have a larger estate. If the value of the estate exceeds the estate tax exclusion, an estate plan could allow the surviving spouse to exclude millions of dollars form their taxes.
When an Estate Plan Gets Screwed Up
If you are looking to create an estate plan, you will need a lawyer. However, there are times when even a lawyer can screw up your estate plan.
Take actor Philip Seymour Hoffman for example. Here are some of the mistakes his lawyer made that his family continues to pay for to this day.
Not Creating a Revocable Living Trust
Revocable living trusts are created to avoid probate and protect the privacy of the trust owners and their beneficiaries. Hoffman’s lawyer did not create a revocable living trust. Therefore, the entire world knows who ended up with the actor’s assets and how much they got.
Not Advising Hoffman to Update the Will
Hoffman had two daughters after he made his will. However, he never updated his will to include them. Even though the children were provided for by law, Hoffman never had the opportunity to specifically direct their interests.
Not Covering the Assets
Hoffman created a trust for his son Cooper, with Cooper’s mother named as the trustee. However, the trust will dissolve once Cooper turns 30. At that point, all assets will distribute directly to Cooper. A better choice would have been making a Lifetime Asset Protection Trust that would keep Cooper’s assets safe from divorce, creditors, lawsuits and bankruptcy. It also would have provided incentive for Cooper to grow the assets instead of squandering them.
Not Using Tax Saving Strategies
Since Hoffman was not married to his longtime partner, he will leave behind a huge federal and state tax bill. The use of estate planning strategies like an Irrevocable Life Insurance Trust would preserve the assets so Hoffman’s family would end up keeping more of the money and giving less to the government.
Creating a will is a good move. But it’s important to think carefully before deciding what will happen to your assets after you pass.
The tips in this article will help you make the right decisions when it comes to will writing including whether or not to hire a lawyer, whether an estate plan is write for you and what type of will you need to make. Good luck coming up with a strategy that works for you.
Research from the following sources were included in this article:
- Nolo: Five Myths About Wills and Probate
- The Balance: What Happens During the Probate Process?
- Lawyers.com: Why Is a Will Important?
- US News: 10 Steps to Writing a Will
- Legal Zoom: What Are the 4 Types of Wills
- Legal Zoom: Do it Yourself Will
- Fidelity: Do you need an estate plan?
- Chris Craig Law: Another Actor’s Estate Plan Screwed Up By His Lawyer