A person’s will is a legal document that outlines how their assets and responsibilities should be handled after their death. It can specify beneficiaries for property, name guardians for minor children and appoint an executor to oversee the distribution of the estate. While many people create a will with legal assistance, it’s also possible to draft one independently, provided it meets state requirements for validity. Handwritten, online and lawyer-prepared wills each have different legal implications, making it useful to understand the options available before making a decision.
While it’s possible to create a will on your own, estate planning can be a complex endeavor. Talk to a financial advisor about how they might assist with your estate planning.
Understanding the Basics of a Will
A last will and testament is a legal document that details your last wishes, specifically those regarding the distribution of your possessions and the care of any minors you’re responsible for. It can contain a number of different directions, but it generally includes at least the following information:
- Executor: The person responsible for ensuring that all instructions are carried out according to the decedent’s wishes.
- Beneficiaries: The individuals who will inherit the decedent’s property.
- Asset distribution: Specify who will receive your assets. You can leave everything to a spouse or children, or create a more complex arrangement, such as dividing your estate among multiple relatives. Include both financial assets and specific physical possessions.
- Guardianship for minors: If you have minor children, designate guardians to care for them. This can also be outlined in a joint will between spouses.
Having a will can make things easier for your family when you die, but it won’t save them from the probate process. This is a court-supervised process that authenticates a person’s will, assesses the individual’s assets and then distributes those assets to the person’s named beneficiaries. You’ll need to form a living trust to avoid probate, though you’ll also likely still need a will.
Conventional wisdom says that only people who are older or wealthy need to create one of these or worry about estate planning in general. However, even people who are young and have modest amounts of assets should have a plan for when they die. This is especially true for people who have children who they want to ensure are properly cared for.
Types of Wills
Different types of wills exist to accommodate various estate planning needs and personal circumstances. While some wills are straightforward and primarily outline asset distribution, others offer flexibility, additional protections or instructions for medical decisions.
Simple Will
A simple will is perhaps the most basic iteration of a will. Its premier purpose is to record your wishes, such as who you want to inherit your property and who should control the distribution of your estate post-death. They also allow you to name a guardian for any minors you leave behind.
If you anticipate having a large estate when you pass away, a simple will may not be the right choice. This is because they often lack the detail needed to help your family file your estate for any possible estate taxes. Some states have an estate tax, along with the federal government.
Joint Will
Joint wills, as their name indicates, are often created by a married couple to consolidate their estate planning needs into one document. It also simplifies your estate plan because when one spouse dies, the other inherits all of their property within the will. Then, when the second spouse passes away, their children typically inherit everything. As opposed to a mutual will, a joint will allows the aforementioned “spouse to spouse” transfer to automatically occur.
A major issue with a joint will is that it cannot be altered unless both parties agree on the changes. Therefore, if you and your spouse have an eventual disagreement on the will, or you want to disinherit one of your children for whatever reason, things could get complicated.
Holographic Will
Unlike many other types of wills, a holographic will does not need to be signed by a witness or notary. Instead, all it calls for is the signature of the testator (the one whose name the will is in). These types of wills are traditionally written by hand. Otherwise, a holographic will possesses all of the abilities of a simple will.
There are many states that do not recognize a holographic will as valid. If you live in a state that has laws like this, beware, as leaving only a holographic will may cause your family extra heartache when it comes time to distribute your property.
Oral Will
An oral will, which is occasionally referred to as a nuncupative will, is meant for individuals who are too unhealthy to complete a written or typed will. Plenty of states don’t accept these types of wills, but those that do often need ample witness interaction. So if your state allows the use of an oral will, be sure you meet the necessary witness stipulations.
Living Will
Although sometimes thought of as a typical will, a living will actually operates much differently. A living will is essentially synonymous with an advance directive, which is a document that ensures your wishes are known should you ever become medically incapacitated. Because of this status, a living will has no bearing on what happens to your property after your death.
Living wills don’t accomplish the same task as a normal will, but that doesn’t make them any less important. As a matter of fact, having both in place as you get older is a great idea.
How to Write Your Own Will
There are a variety of ways to make a will. The simplest option is to write it yourself, which you can do in a truly free-form manner. Simply write down what you want to happen to your estate. There are also online templates available that can provide a basic format to follow, allowing you to just fill in the blanks. You can also buy a computer program to help you.
Another option is to hire a lawyer to assist. Complicated estates often benefit from a lawyer. If you are dividing your assets among a large group of relatives, for instance, hiring a lawyer is a good idea. Similarly, if you have a complicated set of assets — multiple homes and mortgages or lots of money tied up in investments, for example — a lawyer can prove useful. Lawyers can also help if you want to disinherit a child or spouse or if you are worried that someone is likely to challenge your will in court after you die.
Doing it yourself has the obvious plus of being free. Buying a will-writing program online has a cost, and hiring a lawyer is the most expensive option. Regardless of which method you choose, you and two witnesses typically must sign the document. No states require notarization, though that may expedite the probate process.
Common Mistakes to Avoid on Your Will
There are some common mistakes that you should avoid when writing a will. The main misstep is failing to pay attention to the rules. The rules surrounding these documents are different in each state, so make sure you are considering rules regarding age limits, witnesses and other regulations.
Another common mistake is choosing a bad executor. The executor is the person who ensures your wishes are carried out, so make sure it is a competent person you trust. You’ll also want to be sure you name a guardian. If you have minor children, you’ll want to choose someone to care for them in the event you’re gone.
Last but not least, don’t forget to update your will. As you get older, your financial and personal situation will change. Make sure you update your will to reflect that.
What Can’t a Will Be Used for?
Although a last will and testament can take care of many of your estate planning needs, there are some things it simply cannot do. Here’s an overview of areas where your will won’t help you:
- Leave property in a living trust: Since trusts are separate entities that have to be created while you’re alive.
- Override beneficiary designations: Beneficiary designations on a 401(k), IRA or other accounts will supersede a will if there is a discrepancy.
- Set certain conditions on your beneficiaries. For instance, you can’t say that you’ll give $10,000 to your son only if he gives up his stand-up comedy career and attends business school.
- Leave money to pets. It is possible, though, to name a caretaker for your pet and give him or her money to take care of the animal. Just make sure you trust that the person will actually buy Fluffy the organic dog food she loves.
Bottom Line
A will is a legal document outlining your estate and directing what happens to your property and assets after your death. Wills can be simple, with one beneficiary for everything, or complicated, with many beneficiaries. There are a few things a will cannot do, though. This includes creating a plan for your funeral and final arrangements. Writing a will by yourself is possible, but it’s a good idea to hire a lawyer if your estate is complex.
Estate Planning Tips
- A financial advisor can be an important resource if you’re creating an estate plan or managing an inheritance. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
- One of the most important factors to take into account when you’re planning out your estate is the estate tax. Although many states have done away with their estate taxes, the federal government still levies one, along with a handful of states.
Photo Credit: ©iStock/roberthyrons, ©iStock/Anze Furlan/psgtproductions, ©iStock/Duncan_Andiso