Self-Help Guide: What is a Will?
A will is a written document that directs how you want your property distributed after your death. In your will you also appoint a trusted person to be your executor. Your executor (or personal representative) is responsible for distributing your property according to the instructions you place in your will.
What other terms do I need to know?
A beneficiary is the person you name in your will to receive some of your property. Property owned jointly with right of survivorship is property such as a bank account that has specific language stating that the surviving party owns all of the property on the death of the other joint owner.
Why do I need a will?
If you do not prepare a will, your property will be distributed according to your state's law. This law may distribute your property in a way that is contrary to your wishes. For example, if your spouse and children survive you, in most states your spouse will get usually one-third or one-half of your assets and your children will get the remainder. If you have a will, you can leave everything to your spouse.
If you have no surviving spouse and no will, in most states, your property will go to your children in equal shares. This may create problems if, for example, you want a particular child to have the family home, or you want to give more to a disabled child. If you are not survived by a child or spouse, your property may go to parents, grandchildren, brothers or sisters, nieces or nephews, or even to the state, depending on your circumstances and the state in which you live at the time of death. Also, you will not be able to leave anything to a religious or charitable institution without a will. To avoid these potential problems you should have a will.
Will all my assets be distributed to the persons I name in my will?
Some types of property are not covered by your will. Who will get certain assets depends on how that property is owned and the words that are used in other legal documents, such as deeds to real estate, bank account contracts, trusts and life insurance policies. If you have named someone to be the beneficiary of a life insurance policy, the proceeds from the policy will go directly to the beneficiary. Generally, property that you own jointly with another person with a right of survivorship will automatically pass to the other joint owner upon your death. For example, if you have a joint savings account, with a right of survivorship with you daughter, when you die your daughter gets all the money in that account. Even if your will says to divide everything among your three children, she will automatically get the money in your savings account. It doesn't matter what your will says.
It is very important that you know how you own all of your property and how that property will change hands upon your death. Be sure to ask your lawyer if you do not understand any of the terms of jointly held property.
Why appoint an executor?
A will also gives you the opportunity to appoint an individual you trust, called your executor, to distribute your estate. If you do not appoint an executor in your will, the court may have to appoint a bank or an attorney to administer the distribution of your estate. This frequently increases the cost.
How do I select my executor?
You should appoint someone you trust to manage your property, someone who will be able to handle all of the financial matters involved with settling your estate. Check with that person ahead of time to find out if they are willing to take on this responsibility. In many states, the executor has to be a resident of your state. It is always a good idea to appoint an alternate if the first person you name cannot serve.
If I already have a will, when should I change it?
Since it is not possible to see into the future, it is virtually impossible to prepare a will that provides for every possibility. You should review and update your will whenever significant changes happen in your life, or in the lives of those you have named in your will. The following life changes suggest you should review your will to see if you need to make corrections:
- Changes in persons you want to receive your property: Someone you have named in your will may die, or a new member may be added to your family through birth, adoption or marriage.
- Changes in where you live: If you move to a different state, you should have your will reviewed by a lawyer in your new state. Although laws are similar from state to state, there can be important differences in how wills should be written or will be interpreted by the courts.
- Changes in your finances: If you have a significant change in your financial circumstances, you may want to change to whom you give property or how much they should receive.
- Changes in your marital status: If you get married, divorced or become widowed, you probably need to revise your will.
Do I need a lawyer to draft my will?
Yes. A lawyer will draft your will according to your state's laws to make sure it will be valid when you die. In addition, your lawyer can talk with you about provisions you might want to consider, such as:
- Appointing a guardian if any of your beneficiaries are minors;
- Establishing a trust;
- Distributing property you own in another state;
- Making special provisions for a disabled child, divorced spouse, or charitable institution.
How do I know if I need a simple will?
A simple will may be appropriate for you if your distribution plan is uncomplicated. For example, a simple will may be all you need if you want everything to go to your spouse and then equally to your children if your spouse does not survive you. However, if you want minor children or grandchildren to receive property, you will need to appoint a guardian and possibly set up a trust, which is not simple. A simple will would not be appropriate if you want to make gifts to specific people or charities.
How do I prepare a will?
At the end of this Guide is a work sheet to help you get ready to talk to your lawyer about your will. The work sheet guides you through some of the questions you need to answer before the lawyer can draft your document. Your lawyer may have other questions for you. Fill out the work sheet and then get in touch with your AARP Legal Services Network (LSN) lawyer. Your lawyer will answer your questions and draft the document for you. If a simple will is appropriate for you, the Legal Services Network (LSN) lawyer will charge you $75. If you and your spouse each want a single will and have similar distribution plans, the total cost will be $100 (2003 price).
To be eligible for this simple will price, you must have a simple distribution plan, and a simple will must be appropriate for your circumstances. The following distribution plans or personal circumstances are NOT considered appropriate for simple wills:
- Gifts to minors
- Gifts of specific items or amounts to individuals
- Specific provisions for a disabled relative
- Estates worth more than $200,000
- Real estate in a state other than your home state
- Desire to forgive debts others owe to you at your death
- Spouse who may need nursing home care
- Major gifts made within the past three years
- Living children who you want to exclude under your will
Your lawyer will explain if a simple will is not appropriate for you and prepare the document for 20% less than the lawyer's regular fee.
For More Information
Finding Affordable Legal Help
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Search the LSN database or call 888-687-2277 to find a participating attorney in your area.
Note: While we strive to keep this legal information up to date, the law is constantly changing, and we do not guarantee the accuracy of any information contained herein. If you should find any inaccuracies, errors or omissions in this document, please e-mail suggested changes to firstname.lastname@example.org.
AARP – Revision 2003
The AARP Legal Services Network (LSN) is a member benefit offered through AARP Services, Inc. (ASI), a wholly owned subsidiary of AARP. Attorneys participating in the Network are independent practitioners and are not employed by AARP or its affiliates. These attorneys have been screened to meet LSN standards of experience and customer service, and have agreed to offer services to AARP members at reduced fees. AARP and its affiliates do not endorse any attorney, and inclusion in the Network does not constitute an endorsement.