A will is a legal document that sets forth your wishes regarding the distribution of your property and the care of any minor children. If you die without a will, those wishes may not be carried out. Further, your heirs may be forced to spend additional time, money, and emotional energy to settle your affairs after you're gone.
Wills can vary in their effectiveness, depending on the type, though no document will likely resolve every issue that arises after your death. Here's what you need to know about these vital documents.
- A will is a legal document that spells out your wishes regarding care of your children, as well as distribution of your assets after your death.
- Failure to prepare a will typically leaves decisions about your estate in the hands of judges or state officials, and may also cause family strife.
- You can prepare a valid will yourself, but you should have the document witnessed to decrease the likelihood of successful challenges later.
- To be completely sure everything is in order, consider having your will prepared by a trusts and estates attorney.
Why You Should Have a Will
Some people think that only the very wealthy or those with complicated assets need wills. However, there are many good reasons to have a will.
- You can be clear about who gets your assets. You can decide who gets what and how much.
- You can keep your assets out of the hands of people you don't want to have them (like an estranged relative).
- You can identify who should care for your children. Without a will, the courts will decide.
- Your heirs will have a faster and easier time getting access to your assets.
- You can plan to save your estate money on taxes. You can also give gifts and charitable donations, which can help offset the estate tax.
A Written, Witnessed Will Is Best
To maximize the likelihood that your wishes will be carried out, create what's known as a testamentary will. This is the most familiar type of will; you prepare the document and then sign it in the presence of witnesses. It's arguably the best insurance against successful challenges to your wishes by family members or business associates after you die. You can write one yourself, but for greater insurance, have it prepared by a trusts and estates attorney.
Other Types of Inheritance Wills
While a testamentary will is likely your best bet, there are several other types of wills that get varying degrees of recognition.
Wills that are written and signed by the testator but not witnessed are known as holographic wills—from the less common secondary meaning of the word holograph, meaning a document hand-written by its author. Such wills are often used when time is short and witnesses are unavailable, for example when the testator is trapped in a life-threatening accident.
Holographic wills are not recognized in some states, however. In states that do permit the documents, the will must meet minimal requirements, such as proof that the testator actually wrote it and had the mental capacity to do so. Even then, the absence of witnesses often leads to challenges to the will's validity.
Least widely recognized are oral wills, in which the testator speaks his or her wishes before witnesses. Lacking a written record, or at least one prepared by the testator, oral wills are not widely recognized by courts.
Another type of will, a pour-over will is used in conjunction with creating a trust into which your assets flow. (See "Wills and Trusts" below.)
This type of will is usually executed by a married or committed couple. After one party dies, the remaining party is bound by the terms of the mutual will.
Mutual wills can be used to ensure that property passes to the deceased’s children rather than to a new spouse. Because of state differences in contract law, a mutual will should be established with the help of a legal professional. Though the terms sound similar, a mutual will should not be confused with a joint will.
What Does a Will Cover?
A will primarily lets you direct how your belongings—such as bank balances, property, or prized possessions—should be distributed. If you have a business or investments, your will can specify who will receive those assets and when.
A will also lets you direct assets to a charity (or charities) of your choice. Similarly, if you wish to leave assets to an institution or an organization, a will can assure that your wishes are carried out.
While wills generally address the bulk of your assets, some aren't covered by their instructions. Those omissions include payouts from the testator's life-insurance policy. Since the policy has specified beneficiaries, those individuals will receive the proceeds. The same will likely apply for any investment accounts that are designated as "transfer on death."
There's a key exception: If the beneficiaries of those assets predeceased the testator, the policy or account then reverts to the estate and is distributed according to the terms of a will or, failing that, by a probate court—a part of the judicial system that primarily handles wills, estates, and related matters.
In addition, the will may not offer the last word on how assets that were jointly owned within a marriage are dealt with. Most states have elective-share or community property laws that prevent people from disinheriting their spouses. If a will assigns a smaller proportion of such assets to the surviving spouse than state law specifies, which is typically between 30% and 50%, a court may override the will.
In addition to directing your assets, a will states your preferences for who should take over as guardian for your minor children in the event of your death.
Wills and Trusts
A will is also useful even if you have a trust—a legal mechanism that lets you put conditions on how your assets are distributed after you die and, often, to minimize gift and estate taxes. That's because most trusts deal only with specific assets, such as life insurance or a piece of property, rather than the sum total of your holdings.
You might also consider setting up a trust as a way to provide for a beneficiary who is underage. Once the beneficiary is deemed capable of managing their assets, they will receive possession of the trust.
Even if you have what's known as a revocable living trust into which you can put the bulk of your assets, you still need what's known as a pour-over will. In addition to letting you name a guardian for your children, a pour-over will ensures that all the assets you intended to put into the trust are put there, even if you fail to retitle some of them before your death.
Any assets that are not retitled in the name of the trust are considered subject to probate. As a result, if you haven't specified in a will who should get those assets, a court may decide to distribute them to heirs whom you may not have chosen.
If a will leaves less to a spouse than state law requires, that part of the document may be overridden, and the spouse awarded the mandated amount.
What Happens if I Don't Have a Will?
If you die intestate—that is, without a will—the state oversees the dispensation of your assets, which it will typically distribute according to a set formula.
Because of the elective-share and community property provisions mentioned above, the formula often results in half of your estate going to your spouse and the other half going to your children. Such a scenario sometimes results in the sale of the family home or other assets, which can negatively affect a surviving spouse who may have been counting on the bulk of your assets to maintain his or her standard of living.
Further complications may ensue if your children are minors, as the court will appoint a representative to look after their interests.
Dying intestate may have tax consequences, too, since a properly prepared will can reduce the estate tax liability. As of 2021, a U.S. estate tax return must be filed on individual estates valued at $11,700,000 or more. No federal estate tax is due if the estate is worth less than that amount.
Getting Started on Your Will
To prepare a will, begin by compiling a list of your assets and debts. Be sure to include the contents of safe deposit boxes, family heirlooms, and other assets that you wish to transfer to a particular person or entity.
If you wish to leave certain personal property to specific heirs, begin a list of those allocations for eventual inclusion in your will. In addition, you can identify the recipients of particular assets in a separate document called a letter of instruction, which is kept with the will. However, if you include assignments only within this letter, check that the document is legally binding where you live; some states do not recognize them.
The letter of instruction can be written more informally than the will. It can also include specifics that will help your executor settle your estate, including account numbers, passwords, and even burial instructions. Other addenda to the will, such as power of attorney, a medical directive, or a living will, can direct the court on how to handle matters if a person becomes physically or mentally incapacitated.
If both you and your spouse lack wills, you might be tempted to prepare a single document that covers you both. Resist the temptation. Estate planners almost universally advise against joint wills, and some states don't even recognize them. Separate wills make more sense, even if your will and that of your spouse may end up looking remarkably similar. (As noted above, a joint will is not to be confused with a mutual will.)
How to Prepare and Validate Your Will
You don't necessarily need professional help to prepare a valid will. If you are comfortable taking care of the task on your own, a number of software programs are available to assist you, as are a variety of DIY websites. Once you've drafted the document, it needs to be witnessed, usually by two adults of sound mind who know you well.
Any person may act as a witness to your will, but it's best to pick what's known as a disinterested witness—someone who isn't a beneficiary and has no financial or personal stake in your choices. Some states require two or more witnesses. If a lawyer prepared the will, they shouldn't serve as one of the witnesses.
In some states a will must also be notarized, so check the rules where you live. Even if that formality isn't required, you might consider having your witnesses complete what's known as a self-proving affidavit. Signed in the presence of a notary, the document may facilitate the probate process by reducing the likelihood witnesses will be called into court to validate their signatures and the authenticity of the will.
Choosing an Executor for Your Will
You'll need to name a still-living person as the executor of the estate. That person, often a spouse, adult child, or another trusted friend or relative, is responsible for administering the estate. You can also name joint executors, such as your spouse or partner and your attorney.
The probate court usually supervises the executor to ensure that he or she carries out the wishes specified in the will. Still, if your affairs are complicated, it might make more sense to name an attorney or someone with legal and financial expertise.
The case for engaging an attorney is stronger still if your estate is substantial (ranging in the millions of dollars) or your situation is legally complex. If so, be sure to work with someone who is familiar with your state's laws and has extensive experience with writing wills. Your state bar association may be able to help you locate a suitable attorney.
One of the most important things your will can do is empower your executor to pay your bills and deal with debt collectors. Make sure the wording of the will allows for this and also gives your executor leeway to take care of any related issues that aren't specifically outlined in your will.
Where to Keep a Will
A probate court usually requires access to your original will before it can process your estate. It's important, then, to keep the document where it is safe and yet accessible. Avoid storing it in a bank safety deposit box or in any other location where your family may need a court order in order to gain access. A waterproof and fireproof safe in your house is a good alternative.
Then let at least your executor know where the original will is stored, along with needed information such as the password for the safe. In addition, it's wise to give duplicate signed copies to the executor, and to your attorney if you have one. The signed copies can be used to establish your intentions in case the original is destroyed or lost. However, the absence of an original will can complicate matters, and without it, there's no guarantee that your estate will be settled as you'd hoped. So store the document with care.
How to Change a Will
It's possible that your will may never need to be updated. Or, you may choose to update it regularly. Remember, the only version of your will that matters is the most current valid one in existence at the time of your death.
A good rule of thumb: Review your will every two or three years. You may also want to revisit it at pivotal moments in your life, such as marriage, divorce, the birth of a child, the death of a beneficiary or executor, a significant purchase or inheritance, and so on. Your kids probably won't need guardians named in a will after they're adults, for example, but you might still need to name guardians for disabled dependents.
Changing your will is easy. You simply write a new will to replace the old one or make an addition using an amendment known as a codicil. Because of the serious nature of codicils and their power to change the entire will, two witnesses are usually required to sign when a codicil is added, much like when the original will was created. Some states, however, have loosened the legal regulations surrounding codicils and now allow for them to be notarized at a public notary.
Ideally, you want to make any changes when you are of sound mind and in good health. This limits the likelihood that your wishes can be successfully challenged and avoids decisions made in haste or under intense emotional pressure.