The creation of your will is the way to define your legacy. It is your final opportunity to ensure those you love are taken care of in accordance with your wishes. It allows you to determine how your remaining assets can best serve the people and ideals you believed in and impacted your life. Let us examine one of the defining documents of your life and explore how to write a will.
The creation of your will can help remove stress from family and friends by providing them guidance on how you wish your assets to be distributed. It may provide peace of mind knowing that your loved ones will be cared for after your death. Despite this, LegalZoom.com illuminates the fact that over 50% of Americans do not have a will in place.
Most individuals delay the creation of a will into later stages of life. When young, many do not have a ton of assets to consider. Reflecting upon one’s mortality, especially in light of the loved ones and moments you may not see, can be disconcerting.
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When You Should Write a Will
You should create a will the moment someone enters your life you wish to support after you are gone. Some create wills upon getting married, having children, or a notable change in earnings or assets.
If you marry, have kids/pets, or a positive net worth, consider having a will regardless of your age.
How to Write a Will
Creating a will can seem intimidating, but the process is fairly flexible to ensure the intent of the creator is respected. There are several online templates available to help guide the process. The key elements to include are:
- Determine and name an executor for your will
- Consider adding additional executors in case the primary is not available to serve in the role.
- If you have children who are still minors or have special needs, lay out who you would like to have guardianship
- If you have pets – detail who you would like to care for them and any assets that should be distributed for their care.
- Inventory your major assets
- List out the individuals who have touched your life, you love, and wish to support once you are gone
- List out any charities/organizations whose mission you wish to support
- Map your inventory of assets to the individuals and organizations they should go to.
- Sign it
- Have two adults sign as witnesses*
- Make copies to provide to your named executor
- Pace the original somewhere secure, such as a safe deposit box
*As not all states require 2 witnesses or a notarized signature, you should always check the laws and requirements for the state in which you reside.
What Is Required to Make a Will Legal
Wills are given a fairly extensive amount of latitude, deferred to as long as it can be proven they reflect the intent of the deceased. In most countries, and all states in the US, a will must meet the baseline of:
- The creator must be at least eighteen years of age and of sound mind at the time
- The creator must sign and date the will
Additionally, most states require:
- Signatures of two or three witnesses asserting they witnessed the creator signing the will
- The witnesses may not be the named executor in the will in order to remove any potential conflicts of interest
Your state may have additional requirements for your will to be valid. LegalZoom had done a wonderful job of indexing the requirements of the state you live in.
Does a Will Need to Be Notarized
Not every state requires a will to be notarized, however, having it notarized can help ensure there are no disputes upon its execution.
Do You Need a Lawyer to Write a Will
No, you can create a will without a lawyer that can still be legally binding. An estate planner is always a good option if you have significant assets, a large estate, or would prefer the guidance.
Who Can You Include in Your Will
A will can include anyone who has had an impact upon your life. It can include charities or businesses whose mission you believe in and wish to support after death.
Some states do not allow pets to be beneficiaries of a will. In place of naming a pet in your will, you can name someone to take care of the pet and leave any assets for their care to that individual.
Can a Minor Be a Beneficiary of a Will
Most states allow you to name minors as beneficiaries but their inheritance may not be released to them until they reach the age of eighteen or twenty-one, depending on the state. If you leave assets to a minor in an amount over 20k you should define a person to hold those assets until they come of age. If the assets total less than 20k, many states allow you to place the money into a trust or account in the minor’s name.
What Should Your Will Contain
Your will should name an executor- the person you trust to oversee and carry out the distribution in your will.
If you have children, your will should name the person(s) to become their guardians.
If you have pets, your should name the individuals you trust to take care of them, along with any assets you wish to distribute to them to ensure they are able to meet your pets’ needs.
Finally, you should inventory those assets you wish to direct to loved ones and the organizations or charities you wish to support.
Can a Will Burden a Beneficiary or Inheritor
Should there be significant assets inherited by a beneficiary, there could be tax implications to them. While there are some exemptions, a beneficiary’s situation is unique. They will likely need to seek legal or financial advice to discuss their particular situation.
Does Cost Basis for Stocks or Real Estate Get Reset Upon Inheritance
When someone inherits stock holdings or real estate the cost basis usually becomes the value of the stock on the day the deceased passed. This certainly benefits the inheriting beneficiary and may help avoid or alleviate capital gains responsibilities down the line.
Are Any Assets Excluded From a Will
Depending on how the title is held, jointly owned real estate can pass to the co-owner and even bypass your estate, however, these requirements are state-specific. Any concerns regarding real property should be discussed with a legal professional.
If you have named a beneficiary to a brokerage account, retirement plan (s), or life insurance, they will bypass your estate and pay directly to them, trumping any guidance to the contrary you provide in your will.
Certain joint assets/accounts will pass to the co-owner, provided they survive you.
Some assets may also be titled to Transfer on Death to a person, which would also bypass your estate and court proceedings.
How Do Liabilities Impact a Will? Can Assets Be Sold Despite Intent?
Liabilities and any applicable taxes are prioritized and accounted for prior to the distribution of your assets. Should you have significant debts and liabilities, the Estate is obligated to settle and satisfy those before the final distribution of assets.
What Can Invalidate a Will?
The most common cause of the invalidation of a will is a lack of proper signatures. If it can be demonstrated that it was coerced, drafted under duress, or the creator lacked mental capacity, the validity of the will can be contested.
When you name beneficiaries of your will, you can never be certain how people may act or respond. Depending on the situation, there could be considerable contention amongst family members. While you may never suspect a loved one will contest your will, it can and does happen. Some suggest that if you suspect this could happen, consider leaving them something. This may allow you to introduce a stipulation that, if contested, a beneficiary forfeits their inheritance. By leaving them something, you may have given them something to lose. This simple act could be enough to deter them from causing issues and drawing out the estate and probate process.
What Happens if You Have No Will?
If you pass away without a record will your assets will likely:
- Fall to your parents, if unmarried and without children
- Account for your spouse as well as any blood or legally adopted children.
Without a will, your assets will be distributed to lineal descendants in accordance with the statutes of your State; however, there will be no context and could run afoul of your wishes. Loved ones such as stepchildren may be excluded.
Do Any Other Agreements Trump a Will?
Prenuptial or post-nuptial agreements may trump a will. Certain Trust agreements may also fall outside of a will’s parameters.
Who Can Dispute a Will? Under What Premise?
If you leave your spouse or domestic partner out of your will they can dispute it and receive up to half of your estate. Blood or legally adopted children may attempt to claim up to 10k of assets not specifically addressed in your will. Again, it’s important to note the most common dispute comes from someone claiming you were coerced or under duress when it was executed.
What Happens if You Write Two (Multiple?) Wills?
If you wish to create an entirely new will, disavow the original in writing and destroy it. If you leave behind two wills, both will be submitted to the probate court and the most recent will, will be honored, once validated. Should you wish to amend or change parts of your Will, you can do so through a Codicil. Just document the minor or major change or amendment and reference the original will section or paragraph to tie both documents together. Be sure to sign and date it and attach the additional document to your original will and provide copies to your Executor, etc.
Can You and Your Spouse Write Separate Wills?
A Will is your legacy and should be independent from of spouse. While most married couples have reciprocal wills, there may be specific bequests or charitable gifts that an individual wants to make or there could be children from a prior marriage, etc., that one or the other may want to provide for.
Joint wills often include a requirement that neither spouse can make changes independent of the other. If one outlives the other for a substantial length of time, or over any major life events, this may not allow them to best aligns with their desires.
How Does a Will Need to Be Filed/Stored?
A will does not need to be officially filed, but it can be to ensure the court has it on record. At the very minimum, a Will should be stored in a secure and fireproof location. If you have a lockbox at a bank, storing a copy of your will within the box is one of the most secure storage options for your legal and financial documentation.
If you have a lawyer, they may keep your will on file and help ensure it is properly carried out.
Who Needs to Know About Your Will
The executor of the will as well as trusted family or friends should know its location. Knowledge of its contents and location will help clarify that your intentions are followed and will certainly ease their stress when they are grieving your loss.
When Do You Need to Update Your Will?
You should consider updating your will whenever you experience a major life event you wish to account for:
- Expansion of family
- Marriage
- Birth or adoption of children
- Step children
- Divorce or dissolution of Marriage
- Tangible change in assets or wealth
- Loved ones who are not family enter your life that you wish to honor or support
- A charity becomes important to you
- If you move to a state/country with different requirements
What is a Living Will
A living will is a separate document from a will. While a will lays out your financial and legacy wishes upon death, a living will, if executed, is used during your life to instruct doctors and hospitals of the kinds of life-saving measures your wish to use or avoid when you are unable to make these types of decisions and directives.
*The above content is for reference and informational purposes only and cannot be construed or relied on as legal, financial, or tax advice. All content contained on this site is broad in scope and limited information of a general nature. It does not address specific circumstances of a particular individual nor does it address or factor various rules and laws of every State. Nothing on this site constitutes professional legal or financial advice, nor does any information provide a comprehensive or complete statement of the matters discussed or the law relating thereto. You alone assume the sole responsibility of evaluating the information before making any decisions based on the above content. You should always seek the services of a legal and/or financial representative to address your questions, concerns, and individual needs.