Making a Will is the most important estate planning tool. Every person over the age of 18 should make a Will in order to plan what happens to your property, minor children or even your pet after death. No one likes to think about these daunting matters, but writing a Will avoids problems for your family once you die.
Why make a Will?
Writing a Will is more than just signing a document. It is a process of forward planning; to ensure your property passes to the people you want, in the way you determine after your death.
Making a Will has the following benefits:
- You can choose a person to carry out your wishes (called the executor);
- Being able to stipulate who receives what property and to what extent;
- Avoiding your minor children having to endure the adoption system by appointing a guardian (someone you trust).
How to make a Will?
The safest way to create a legal Will is to consult an attorney. Although it costs more, wills and estate attorneys can ensure that your Last Will and Testament is drafted in accordance with state requirements and your wishes. This makes probate quicker and easier.
Some people prefer to create a Will themselves to save costs. There are many simple Will making tools available on the internet:
- Downloadable Will Form: this is a basic Will template which you may download, complete and sign. Some providers have specific Will Forms for each state, whilst others provide a generic version for all states.
- Will Software: using software or a program to make a Will is a little simpler. The program asks you questions and then assembles a legal Will form on your behalf. You can then print that document and have it signed in accordance with formal execution requirements.
When choosing an online Will Form or software, make sure you research the company providing the service. Ensure the documents are actually written by a qualified and licensed attorney and that they are frequently updated to comply with the current laws. Note: the Will Forms on this website are not suitable for making a Will, they are samples only.
Be sure to follow the instructions precisely. If you don’t follow the instructions and your Will is held to be invalid, you will not have recourse against the company providing the legal Will forms.
What do I need to make a Will?
Before writing a Will, you should plan what you would like to include. Here are some issues to consider:
- Executor: Who will you appoint as executor? This is the person who will manage your estate, collect all the property, file the court documents and distribute the property to your beneficiaries. It should be a person of trust. Normally spouses appoint one another. You should also name an alternate executor just in case your first choice is unable to act.
- Beneficiaries: Do you want to leave specific gifts to anybody? For example jewelry? Write out a list of specific bequests and the beneficiaries. Who receives the balance or the whole estate if there are no specific gifts? If you nominate a number of persons, write down the portions each is to receive. What happens if one of them dies before you?
- Guardian: if you have minor children, who do you want legally appointed to look after them if their other parent cannot?
- Body remains: Do you want to be buried or cremated? You can add specific instructions or just leave it up to your executor.
Requirements of making a Will
To make a legal Will, each state has its own formalities that need to be complied with. If the execution and witnessing requirements are not followed, the Last Will and Testament becomes invalid. Property then passes in accordance with the state intestacy laws (not in accordance with your wishes).
Many states require the Will be in writing, signed by the testator and witnessed by at least two competent persons. Usually all three persons need to be present at the same time. The testator must sign in the presence of the witnesses and the witnesses must sign in the presence of the testator and each other.
Also, if you make a Will make sure you have appropriate witnesses. Some jurisdictions void gifts made to witnesses. If you are intending on having your spouse witness your Last Will & Testament, make sure your state allows this and that any gift made to your witness is not affected. Preferably, you should have independent disinterested witnesses.
Some states accept Wills which do not comply with the formal requirements. These are called nuncupative (oral) or holographic Wills. Even though formal execution requirements are dispensed with, such a Will can usually only be use in limited circumstances. They also have specific formalities of their own and are harder to prove in probate proceedings.
If you intend to make a Will yourself, make sure you follow the strictest guidelines and get it witnessed. Do not rely on oral or holographic Wills.
When to make a Will?
Everybody should write a Will as soon as they are legally entitled. Most states require you to be at least 18 years old. Even if you do not have any property, the signing of a Will simplifies matters for your family if you should die prematurely. In such a difficult time, even organizing funeral arrangements and closing bank accounts is made easier if you have a Will.
You should revise and update your Will regularly, especially when you experience a life changing event such as getting married, having or adopting a child or upon being divorced.
There can be serous implications if you do not update your Will after such events. For example:
- In relation to marriage, most states do not void a Will made prior to marriage. If your spouse is not mentioned in the Will, then he/she is only entitled to the minimum statutory entitlements. In some states, this can be very minimal. The rest of your estate passes in accordance with your last Will (even if that Will was made prior to your marriage and did not mention your spouse).
- As to children, if you fail to make a new Will after having a child (by birth or adoption), in many states that child is entitled to a share of your estate based on the rules of intestacy (ie: on the assumption that you died without making a Will). This may not reflect your wishes.
- Divorce does not revoke (cancel) your Will in most states. Although, many jurisdictions void provisions in the Will in favor of the former spouse.
Whatever the situation, you should always make a new Will after a change in circumstances. This ensures your wishes are properly recorded and carried out.
Make a Will in your state:
For advice on how to make a Will in your state and to download free Will forms, follow the links below: