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What Is a Will

They say the only certainties in life are death and taxes, and one of the best ways to prepare for the former is to create a last will and testament for yourself. The last will and testament – often referred to as just a “will” – is an estate planning tool that directs what will happen to your estate following your passing. However, there are a number of considerations to take into account when creating a will for the first time. While it’s possible to create a will on your own, estate planning is a complex endeavor, so it’s a good idea to work with a financial advisor in your area.

What Is a Will?

A will 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:

  • An executor, who is responsible for ensuring that all instructions are carried out per the decedent’s wishes.
  • A list of beneficiaries, who are the people that will inherit the decedent’s property.
  • List all the details of who you want to pass your assets on to. You can choose to leave all of your possessions to your spouse or children. On the other hand, you can opt for a more complicated arrangement, like dividing all of the money in your estate among various relatives. In addition to financial possessions, you should list who you want to leave specific pieces of physical property to.
  • Designate guardians for your children if they are minors. This can also be part of a joint will between two 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

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 greatly simplifies your estate plan, being that 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 who’s 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 you 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

What Is a Will

There are a variety of ways to make a will. The most simple 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 big 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 requires notarization, though that may expedite the probate process.

Explaining What a Will Cannot Do

There are some things a will simply cannot do, including:

  • Leave property in a living trust.
  • Leave money in a 401(k) or IRA for which you have listed a beneficiary for the account.
  • Give funeral instructions. Your family may not read your will until after your funeral. Therefore you’ll want to write down specific wishes for your funeral. Let your family know whether you want your remains buried, cremated or donated to science.
  • Put 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 career and attends business school.
  • Leave money to pets. It is possible, though, to name a caretaker for your pet and give them 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.

Common Mistakes to Avoid With Wills

What Is a 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.

Bottom Line

A will is a legal document setting up your estate and directing what happens with your property and assets after you’ve died. Wills can be simple, with one beneficiary for everything, or complicated, with many beneficiaries. There are a few things a will cannot do, including 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 for anyone trying to create an estate plan or manage an inheritance. Luckily, finding the right financial advisor that fits your needs doesn’t have to be hard. SmartAsset’s free tool matches you with financial advisors in your area in 5 minutes. If you’re ready to be matched with local advisors that will 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

Ben Geier, CEPF® Ben Geier is an experienced financial writer currently serving as a retirement and investing expert at SmartAsset. His work has appeared on Fortune, Mic.com and CNNMoney. Ben is a graduate of Northwestern University and a part-time student at the City University of New York Graduate Center. He is a member of the Society for Advancing Business Editing and Writing and a Certified Educator in Personal Finance (CEPF®). When he isn’t helping people understand their finances, Ben likes watching hockey, listening to music and experimenting in the kitchen. Originally from Alexandria, VA, he now lives in Brooklyn with his wife.
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