Why is it important to know how to make a legal will? Well, when you die, you leave your assets behind. This won’t matter much to you after it happens, but it will matter to the people you leave behind. That’s where your will comes into play.
You see, we need instructions from you telling us what to do with your assets after you’ve gone to file that last tax return in the sky. Many people use a revocable living trust to do this. Another way is to use a will to tell us what to do.
Although the will is not my favorite mechanism, it’s certainly better than nothing. If you ignore this issue, your estate ends up in probate, which is expensive and terrible. Avoid this by taking action.
Before I go much further, let me emphasize that I’m not an attorney and you should seek proper legal assistance from a qualified attorney prior to writing a trust or will.
Again, your will tells the people left behind who should get which assets. If you’ve decided that you need a will rather than a trust, it’s best to write it up sooner rather than later. If you don’t and die anyway, you’ll die intestate, which means without a will. If that’s the case, the courts will decide everything and eat up lots of your assets in fees and costs in the process. You don’t want that to happen…right?
1. Getting Started
Depending on your situation (married, single, with or without minor children, with or without adult children) and what state you live in, the rules change. Check local requirements. But the following requirements are pretty basic and should cover the bases. Still, it’s always best to check. Once you create your document (typed, please…don’t hand-write it) you’ll have to get it witnessed and/or notarized. If your situation changes due to births, deaths, divorce, purchase or sale of property or new residence, just produce a new will and destroy the old one.
Let’s get into the particulars:
2. Your Title
“LAST WILL AND TESTAMENT” should be the title to the document.
3. Name Names
Write your full name and address and clearly state that you are “of legal age to make a will and are of sound mind and memory.” Further state that this is your last will and testament and that it revokes all previously made wills and codicils. Continue by saying that you are “not under duress or undue influence to make this will.” Note here also that you revoke any and all wills and codicils you previously made.
4. Name Your Executor
The executor is the person who is going to make sure the wishes you set forth in the will are carried out. This is similar to the trustee of a trust. People usually name their spouse or the main beneficiary of the estate. Whoever you pick, make sure it’s someone who is interested in wrapping things up quickly.
It’s also a very good idea to talk about this with the executor while you are still able to do so. And name an alternate executor just in case your primary person isn’t able to serve at the time. This just leaves less work for the court to do and more money in your beneficiaries’ pockets. Give the executor the power to pay all of your debts, funeral expenses, taxes and estate administration expenses.
This will simplify things for your heirs and allows them to take their shares without having to worry about coming up with money to pay for your expenses. While you’re at it, empower your executor to sell any real estate you have an ownership interest in. Give them the power to pledge, lease or mortgage it and deal with it as you would yourself. Spell out if you require that the executor serve with or without bond.
A bond will safeguard your heirs in case the executor absconds with the loot. But a bond is also expensive and your estate is going to pay for it. Make this decision carefully and make it clear to the world what your decision is.
5. Name a Guardian
If you have minor children, name a person who would step in if none of the birth parents survive. This is super important. Talk to this person and make sure they are willing and able to take on the responsibility – no matter how remote the possibility. If you name a married person, name the couple as guardians. If for no other reason, create a will so you can name guardians for your kids. The last thing you want is for the courts to decide who the guardian is going to be. Am I right?
Don’t make this a guessing game. Be very specific about who your beneficiaries are. Use names and don’t leave any doubt as to who they are. Make sure you make a provision in case the primary beneficiary fails to survive. Here is where you certainly want to get expert legal advice. Depending on the state you live in, if you have a spouse, he may be entitled to a portion of your assets regardless of what you write in your will.
Spell out your assets in this section.
Some assets are part of your estate and others aren’t. For example, if you own a property in joint tenancy, the property will belong 100% to the other joint tenant when you die. It doesn’t matter what you write in your will.
The same thing is true if you have retirement assets and have named beneficiaries. Ditto for life insurance. When you die, the assets will go to those beneficiaries regardless of what you write in your will. The assets that are governed by your will are called “estate assets” because they aren’t already spoken for in the event of your death.
Name the people and the percentages of the assets they each get. Just make sure the total works out to be 100%. You need to get a perfect score on this last math quiz. Also, spell out what happens to that person’s percentage if they die before you do. Last, leave a “residual clause.” This tells the court what to do with any assets you forget to mention in the asset section. And yes…there will be assets you forget to mention.
If you have a specific asset that you’d like to give to a specific person or organization, here’s where you lay that out.
9. Final Arrangement
This is the gruesome part. Tell your survivors what to do with your remains. Enough said.
10. Your John Hancock
Signature requirements vary from state to state. Cover your bases by having three witnesses and a notary if you aren’t sure of what your state requires (but it’s very important to check with your state to see what those requirements are).
Sign the will with witnesses present and in front of a notary. Make sure to sign every page of the will. You’ll probably need two witnesses, and they can’t be beneficiaries of the will. The witnesses should note their full legal names and addresses. Add language indicating 1. that they are adults of sound mind who witnessed your signature; and 2. that they consider you to be of sound mind, adult age and not under duress or undue influence to sign your will. The witnesses must acknowledge that they were present when you signed, aren’t beneficiaries or related to you in any way.
Final note. Make sure to number the paragraphs. This helps the court know that your document is authentic and hasn’t been altered.
Store your will and don’t make any changes to it. Only tell your executor where the document is.
I’ve explained this process assuming you are dead-set on making your own will, but I must tell you that I think you are nuts if you do this yourself. You’ve worked all your life and want to make sure that your assets get split up correctly. You want to control who gets what and you want to get this done as inexpensively as possible. You might save a few hundred bucks by doing it yourself while you’re alive, but with so many things that could go so wrong, is it worth it? Consult an attorney or use a great service like LegalZoom.
Do you know anyone who wrote their own will and passed away? Was the will honored or did it create problems?