Writing a will isn't the most pleasant of tasks. After all, by doing so you're not only acknowledging your own inevitable demise but actively planning for it. That might explain why so many adults avoid this cornerstone of estate planning. According to an AARP survey, 2 out of 5 Americans over the age of 45 don't have a will.
But creating a will is one of the most critical things you can do for your loved ones. Putting your wishes on paper helps your heirs avoid unnecessary hassles, and you gain the peace of mind knowing that a life's worth of possessions will end up in the right hands.
"A will is an important way you can stay in control over who gets what of your property," says Sally Hurme, an attorney with AARP, "and by planning in advance you can also save your family time and money."
The laws governing wills vary from state to state. If you aren't familiar with them, consider consulting a knowledgeable lawyer or estate planner in your area. Before you do, brush up on these 10 things you should know about writing a will.
What is a will?
A will is simply a legal document in which you, the testator, declare who will manage your estate after you die. Your estate can consist of big, expensive things such as a vacation home but also small items that might hold sentimental value such as photographs. The person named in the will to manage your estate is called the executor because he or she executes your stated wishes.
A will can also serve to declare who you wish to become the guardian for any minor children or dependents, and who you want to receive specific items that you own — Aunt Sally gets the silver, Cousin Billy the bone china, and so on. Someone designated to receive any of your property is called a "beneficiary."
Some types of property, including certain insurance policies and retirement accounts, generally aren't covered by wills. You should've listed beneficiaries when you took out the policies or opened the accounts. Check if you can't remember, and make sure you keep beneficiaries up to date, since what you have on file when you die should dictate who receives those assets.
What happens if I die without a will?
If you die without a valid will, you'll become what's called intestate. That usually means your estate will be settled based on the laws of your state that outline who inherits what. Probate is the legal process of transferring the property of a deceased person to the rightful heirs.
Since no executor was named, a judge appoints an administrator to serve in that capacity. An administrator also will be named if a will is deemed to be invalid. All wills must meet certain standards such as being witnessed to be legally valid. Again, requirements vary from state to state.
An administrator will most likely be a stranger to you and your family, and he or she will be bound by the letter of the probate laws of your state. As such, an administrator may make decisions that wouldn't necessarily agree with your wishes or those of your heirs.
Do I need an attorney to prepare my will?
No, you aren't required to hire a lawyer to prepare your will, though an experienced lawyer can provide useful advice on estate-planning strategies such as living trusts. But as long as your will meets the legal requirements of your state, it's valid whether a lawyer drafted it or you wrote it yourself on the back of a napkin.
Do-it-yourself will kits are widely available. Conduct an Internet search for "online wills" or "estate planning software" to find options, or check bookstores and libraries for will-writing guides. Your state's departments of aging also might be able to direct you to free or low-cost resources for estate planning.
And while you're working on your will, you should think about preparing other essential estate-planning documents. "When you create or update your will, that's also a good time to think about other advance-planning tools like financial and health care powers of attorney to ensure that your wishes are carried out while you're still alive," says Naomi Karp of AARP's Public Policy Institute.
Should my spouse and I have a joint will or separate wills?
Estate planners almost universally advise against joint wills, and some states don't even recognize them. Odds are you and your spouse won't die at the same time, and there's probably property that's not jointly held. That's why separate wills make better sense, even though your will and your spouse's will might end up looking remarkably similar.
In particular, separate wills allow for each spouse to address issues such as ex-spouses and children from previous relationships. Ditto for property that was obtained during a previous marriage. Be very clear about who gets what. Probate laws generally favor the current spouse.