Your will is the keystone of your estate plan. It spells out how your assets will be distributed and how your dependents will be cared for after you die. If a will is properly prepared, witnessed, and signed, it ensures that your wishes regarding these matters will be carried out.
Use Your Will To:
- Identify who will inherit your probate estate. Use your will to say who gets what. You can leave everything to your spouse, a painting to your granddaughter, divide everything equally between your two kids, or leave various percentages to friends and charities.
- Be aware that your surviving spouse has a legal right to inherit a portion of your property. Normally, you cannot do away with this right in your will. Any property that you own jointly with someone else will automatically go to that joint owner, despite anything you say to the contrary in your will.
- Name guardians for your minor children. You have to nominate a guardian to care for children who are younger than 18. A guardian will raise your children until they reach maturity. If your children are young, consider naming alternate guardians who can step in if your primary guardian dies or becomes disabled.
- Create a trust if any minors will inherit your assets. Minors cannot inherit directly from you, so you must appoint a trustee to take care of their inheritances until they are older. You specify the age at which the child will receive his or her inheritance.
- Choose an executor. The executor will manage and settle your probate estate according to your instructions. Make certain the person you choose as your executor is both willing and able to serve. Depending on the size of your estate, you may want to designate two executors who can work together to settle your affairs. One executor could be an individual, like a family member or close friend. The other could be a bank or an attorney with legal and financial expertise.
If You Don't Have a Will
If you die without a will (a condition called "intestate") a probate court will appoint an administrator to direct and manage your estate. The administrator's duties can include distributing your assets and naming guardians for your children. Be aware that the administrator is guided by local laws, not your wishes, when he or she makes decisions about your estate.
The court may require that the administrator be bonded to ensure that he or she properly performs the required duties. Your estate will pay the bonding fee, the administrator's fees, and other legal fees.
Don't Do It Yourself
Don't be tempted to write your own will. To be valid, a will must comply strictly with the law in your state. The law might require that a will contain specific language, be signed in a particular way, and have a certain number of witnesses.
Only about half the states recognize homemade wills. Even in these states, your DIY will may not stand up in court if it contains language that could be easily misunderstood. If a disgruntled family member attacks your homemade will in court, he or she could have the entire document declared invalid. If this happens, the state would distribute your property as if you did not have a will.
Where Should I Keep My Will?
Generally, you don’t need to register your will. Your executor will do so with the register of wills in the county where you were living when you died. Keep your will in the same place you keep other important papers.
Be sure to choose a safe place where someone else can find the will after your death. Someone you trust should know that the will exists and where it is located.
Some people keep their wills in safe-deposit boxes. Keep in mind that if the will contains provisions which must be known immediately upon your death, a safe-deposit box may not be the best place to keep it. This is because it may be time-consuming for someone whose name is not on the safe-deposit box to gain access to it.
What Is a Self-Proving Will?
A self-proving will has, in addition to the signatures of the testator (you) and witnesses, a notary public’s affidavit attesting to the validity of all the signatures. The affidavit eliminates the need to verify the signatures at the time of probate. In most states, it is not necessary to have a self-proving will for it to be legally effective; however, it is certainly advisable.