While no one likes to think about their own mortality, one thing we can all do to alleviate the burden placed on our loved ones after we’ve departed is to create a will. A will is an important legal document that dictates your final wishes for the care of your minor children and the distribution of your property and financial assets.
Something most people don’t realize is that if you pass away without a will, the state will effectively make one for you. All estates pass through a court process known as probate, and when you’re intestate (without a will), it will be up to a judge to decide how your assets should be split and who will take guardianship of your dependents. Often times, these decisions will be much different from how you would have envisioned them and can cause a lot of burden and stress for your survivors.
To avoid this situation and better organize your family life, every adult should become a testator by creating a will that outlines their last wishes and dictates how they should be carried out. This will make settling your affairs much easier after you’re gone and reduce the amount of time and money that will be required, along with avoiding intestate succession.
Preparing a will is a relatively simple but important process when it comes to estate planning. Here is how you can get started making yours.
How to Make a Will in 8 Steps
1- Decide how you will prepare your will
Officially, the proper way to create a will is to consult an estate planning lawyer. A lawyer will ensure that the language of this document meets all state requirements and covers all the angles that you may not have considered, including testamentary capacity. Also, because you sign this will in the presence of the attorney and with a notary, it will carry more weight during probate and avoid some of the confusion that may arise around oral wills, handwritten wills, or holographic wills. You should also consider including an advance directive or other health care related guidance.
If you’re looking for a more affordable option, you could use an online service such as Legal Zoom to prepare your will. Technically, you could even draft the will yourself. However, keep in mind that these types of wills may not address all aspects of your estate and may be more easily challenged in court.
2- Select your beneficiaries
As the testator, the next step is to determine who will be a beneficiary and receive your assets when you pass on. This could be certain family members, friends, or even charitable organizations that you wish to donate to.
As you’re naming your beneficiaries (ie beneficiary designation), remember that some state laws may overrule your selections. For example, if you are separated from your spouse and wish to leave everything to your children, your spouse may still be legally entitled to half of your estate. Again, work with an estate attorney and law firm to make preparations that are right for your unique situation.
3- Choose the executor for your will
An executor is a person you designate to carry out the instructions you’ve left in your will (you may also choose to go with a professional executor). This person will have a duty to appear in court and argue on your behalf should the content of the will be challenged in any way. Therefore, you’ll want to make sure this is a person you trust will perform a fair and honest job distributing your assets.
4- Pick a guardian for your kids
If you’ve got any minor children, you’ll want to name a guardian who will care for them after you’re gone. Again, this should be a person such as a family member or friend that you would trust to raise your children.
Don’t automatically assume the person you designate will want this responsibility. The best approach is to have an open and honest discussion with this person now to ensure that they would care for your children if the worst were to happen. As a backup, you should also have a second choice listed if your primary selection is not able to accept.
5- Be specific about who gets what
Often times, we think of our assets as just being our money, house or life insurance policy. But some of the nastiest fights among family members are for family heirlooms and possessions that hold some kind of special meaning. To avert these kinds of arguments, clearly detail in your will who will get which items.
6- Be realistic about who gets what
At the same time as you’re being specific about who gets what, you’ll also want to be fair and realistic about how your assets will be distributed. For example, if you have two children and leave everything to one of them, the other may be able to challenge this wish in probate and even get the judge to side with them.
7- Find a place for your will
After you create your will, its existence should not be a secret. Make your will easy to find and access after you’ve passed on.
8- Review and update your will
Sometimes, years might pass between when you first write our will and when it may be presented in court. As your lifestyle, financial situation, and even marital status changes with time, the testator should regularly revisit your will and update it accordingly.
How a Trust Can Help a Will
While wills are crucial documents in the estate planning process, they do not guarantee that all of your final wishes will be carried out exactly as you stated. Since a will must first pass through the probate process, your assets will be subject to any creditors or other parties who file a claim to them. This can alter or even completely diminish any property you were planning to leave to your heirs.
To protect your assets after death and ensure that they are distributed to your beneficiaries as you would have intended, most estate lawyers and estate planners will recommend that you supplement your will with the creation of a revocable living trust. Trusts can be used to transfer benefits to a third-party trustee and avoid the probate court process altogether. The trustee is then responsible for distributing the assets to your intended heirs according to the terms you set.
Click here to learn more about the different types of trusts and how they work.