A will is a legal document in which you specify what should be done with your property—not just your home but any possessions—after you die. It also names the executor, i.e. the person to handle the property. If you die without making a will—called "intestate"—then state law will determine what happens to your property. For this reason, experts recommend that you have a will even if you have almost nothing. These resources will explain more about what a will is and how to make one.
Even though requirements may differ from state to state, these are fairly standard. To make a will you must be an adult –- age 18 in most states. You must also be of "sound mind." This basically means that you must know what a will is and that you are making one, know what you own, know the identities of your family an close friends, and be able to decide how to distribute your property.
A will must be typewritten or printed from a computer. Handwritten wills are only valid in a few states and even then should be a last resort.
What makes a will legal?
To make a will legal it must fulfill these requirements:
- It must state that it is your will.
- You must date and sign the will in the presence of witnesses.
- The will must be signed by at least 2 witnesses, 3 in Vermont. In most states, the witnesses must not inherit anything under the will.
A will doesn't have to be notarized. In most states, you and your witnesses should sign an affidavit before a notary public. This makes the will "self-proving," so that the witnesses won't have to go to court to prove the validity of the will.
A will doesn't have to be filed or recorded with any government agency. It may be filed in a few states should the maker so wish.
What should be in a will?
A will usually has the following information:
- Your name and place of residence.
- Names of beneficiaries—spouse, children, charities, friends, etc.
- Alternate beneficiaries in case a beneficiary dies before you do.
- Name of the personal representative or executor to manage the estate.
- A statement revoking any prior wills.
Any of the following information can also be included in a will, if you desire.
- Specific gifts.
- Establishment of a trust.
- Name of the guardian(s) of minor children.
- Alternate guardian(s).
- Cancellation of debts owed to you.
What shouldn't be in a will?
Experts advise that your will is not the appropriate place to handle the following:
- A description of your assets.
- Property that you hold with someone else in joint tenancy. At your death, your share of the property automatically belongs to the surviving co-owner.
- Property that has been transferred to a living trust.
- Proceeds of a life insurance policy that has a beneficiary.
- Money in a pension plan, IRA, 401(k) plan, or other retirement plan. The beneficiaries for these are named on forms provided by the plan administrator.
- Stocks or bonds held in transfer-on-death forms.
- Money in a payable-on-death bank account.
- Funeral instructions.
- Reducing estate taxes.
- Avoiding probate.
- Putting conditions on gifts.
- Leaving money for an illegal purpose.
- Arranging to care for a beneficiary with special needs.
- Leaving money to pets.
For the appropriateness of specific bequests and instructions your wish in your will, consult your legal advisor.
Does a lawyer have to draw up a will?
No. A lawyer doesn't have to draw up a will for it to be legal. With good self-help materials—books and software are available—most people can draw up their own will.
However, there are benefits to having a lawyer prepare your will (and other estate planning documents). A lawyer is knowledgeable about the laws of the state and is trained in putting your wishes in the clearest and most appropriate form. A lawyer can also help you decide which estate planning documents are appropriate for your situation.
Updating your will
Your will can be updated in two ways. The first is to add a "codicil." A codicil can add, modify, delete, alter or revoke existing provisions in a will. A codicil must be signed before witnesses just like a will.
The second way it to write a new will. With the use of computers today, it is probably just as easy to write a new will than to make a codicil. Making a new will can also reduce confusion that can be caused by codicils. If you make a new will, it should include a clause that cancels all previous wills.
Choosing a personal representative
Your will must name a personal representative (or an executor in many states). The personal representative is responsible for settling your financial affairs after your death. You can choose anyone who is age 18 or older (except convicted felons) to be your executor. Most people choose their spouse, an adult child, or a close friend. Your personal representative should be willing to do the job. You should also name an alternate personal representative to cover the possibility that the person name as the personal representative can't or doesn't want to be the personal representative. If you don't name an alternate personal representative, the court will have to appoint one.
Choosing a personal guardian
If you have minor children (under age 18), then you should appoint a guardian for each child in your will. This will ensure that, in the unlikely event that you and your spouse die, your children are cared for as you would wish. You can name a separate guardian for each child or one guardian for all the children. If you decide to name a separate guardian for each child, you should provide a statement explaining why this is best for the children.
Choosing a financial guardian
Because minor children cannot own property outright without adult supervision unless, depending on the state, it is under $2,500 - $5,000, experts recommend that the personal guardian should usually manage the money and property left for the children unless there are very good reasons for choosing someone else. For example, the person you choose as a guardian may not want to manage the financial inheritance in addition to caring for the children or he or she may not be financially savvy. In this case, you want to choose someone who is a good financial manager and is willing to do the job. If you do decide to have another person manage the finances, then make sure that the proposed guardians agree to this arrangement before you name them. You can leave property to a minor and name the property guardian in these basic ways:
- Under the Uniform Transfers to Minors Act (UTMA). All states, except South Carolina and Vermont, have adopted this law. Under UMTA the property guardian is called a custodian. The child receives the property when they reach age 18 to 25 depending on the state. If you have multiple children, you will need to make separate gifts to each child.
- Child's trust or Pot trust. Under a trust, the property guardian is called a trustee. Such trusts are legal in all states. You can either create a separate child's trust for each child or use a pot trust to leave property for multiple children. Under a pot trust, property doesn't' have to be spent equally on each child. With a child's trust, you specify the age the beneficiary must reach before they receive the property. With a pop trust, usually the property is turned over to the beneficiaries when the youngest turns 18 or 21.
- Property guardian. If you don't use one of the above methods, or there is property that isn't covered by one of the above methods, you name a property guardian. With this method, the property must be turned over to the beneficiary when they turn 18.
The amount of paperwork required for naming a property guardian and the requirement for court supervision vary among the methods. Consult a legal professional to decide what method is right for your situation.
Resources for Wills
These resources provide more information about these topics related to making a will.
What is a Will? from AARP offers an introduction to preparing a will. It also includes a worksheet to help you get organized.
Wills from Nolo.com has various articles such as making a no-frills will, choosing a guardian for your children, choosing an executor, when do I need to change my will.
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