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You may know how you want your assets and personal belongings to be handled upon your death, but if you haven't officially made these desires known through specific documentation, you can't assume that your loved ones know your wishes and will honor them. In fact, according to Caring.com’s 2023 Wills and Estate Planning Study, only 33% of Americans have any type of estate planning document. The most common estate and end-of-life planning documents include wills, trusts and advance healthcare directives, which are also called advance directives or living wills.
Without a last will and testament, those your final wishes aren't legally binding.
What Is a Will and How Does It Work?
A will is a written estate planning document stating your final wishes for your money, your property (real estate and other belongings) and people in your care, including dependent children, other family members (like a sibling or aging parent) or individuals over whom you have guardianship. Though that's the general concept, legal wills must also be prepared according to specific rules.
A will may be a good way to secure your plans for your finances, family and property after you die. These plans could include:
- The type of funeral or burial or cremation you want
- Who will inherit your favorite pieces of jewelry
- Who will raise your children
A disconnect continues to exist between how Americans think about estate planning and what they end up doing about an estate plan in reality. While more than 69% of Americans believe you should have a will before age 55, only 46% of Americans age 55 and older actually have a will or some other estate planning document.
Remember that a properly written will could help save your survivors a good deal of trouble and confusion after you are gone. Your will ensures that your estate plan wishes are followed exactly how you want them to be.
What Can a Will Include?
When drawing up a will, there are several main areas for you to carefully consider. These include choosing an executor, distributing your assets and belongings, addressing disinheritance, assigning guardianships and specifying gifts and donations.
Your executor is responsible for handling the details of your estate after you die. The executor can:
- Pay remaining bills
- File outstanding taxes
- Cancel credit cards
- Distribute property and assets in the will
- Finish any other remaining business
The executor of your estate can be a friend, a family member or a bank. It's best to ensure they agree to the role before designating them in your will.
Distribution of Your Assets & belongings Belongings
A will can name the recipients of your:
- Real estate
- Bank account assets
- Sentimental items
- Valuable family heirlooms/antiques
- Certain other financial assets (e.g., stocks, bonds, Treasury notes, etc.)
In your will, you can specify items as a whole category, such as "jewelry," or identify them individually, such as "wedding ring."
You can disinherit a person in your will. A disinherited person would be someone normally considered a legal inheritor, such as a spouse, sibling, child or another relative.
For example, a divorced person may choose to disinherit their former spouse. If you disinherit someone, they will not receive any of your assets or belongings.
Future Care of Minor Children & Others — Guardianship
A will can also designate a guardian or guardians for your children — or for someone else for whom you are responsible, like an aging parent or disabled relative — and dedicate funds for raising or caring for them.
- If you die without specifying your child's guardian, the court will select a guardian or guardians, and they might not be the person or people you would have chosen.
- If you're a pet owner, you can identify who will care for your pet after you’re gone.
Gifts & Donations
In your will, you also can specify money or items to be gifted or donated to friends, family members and charities. Federal gift tax laws allow a certain amount to be given to a person without the estate owing a gift tax. Donating money can have tax ramifications, so it's best to consult an attorney or a tax advisor for input.
What Are the Different Types of Wills?
There are various types of inheritance wills that you can create, depending on the size and complexity of your estate. Some of the most common ones include the following:
- Testamentary wills are perhaps the most familiar type of will. A testamentary will is a traditional last will and testament that you prepare and then sign in the presence of witnesses.
- Joint wills and mutual wills — commonly used by married or committed couples — are similar, but a joint will involves one document signed by two people; a mutual will involves two documents that are signed separately but which may have largely the same content in both. If you want your spouse to be the initial beneficiary of your entire estate and the final beneficiaries to be your children after you both die, a joint will may be a good choice. However, a joint will cannot be changed after one spouse passes away. Alterations to a joint will can only be made while both parties are alive. Mutual wills can be employed when you want assets to go to the deceased’s children instead of to a new spouse.
- Holographic wills are written and signed by hand without the testament of witnesses. Rather uncommon, a holographic will may be created during an extreme and unexpected life-threatening situation, such as a car accident, in which the testator (the person writing the will) is not expected to survive. Holographic wills are not recognized in all states.
- Noncupative (oral) wills are spoken. For example, a testator who is on their deathbed may verbally explain their wishes to their family members. Like holographic wills, noncupative wills may not be recognized in the same way (or at all) in certain states.
- Online wills are digital wills that you can create online. An online will offers you the ability to create a legitimate and legally binding document at a reduced cost compared to meeting with an attorney. You can even create an online will for free.
How to Write a Will
The first step in writing your will is to create an inventory of all of your assets and debts and to figure out what you want to have happen to them after you die. These assets may include monetary assets (cash, savings accounts, stocks, etc.), real estate, jewelry and valuable family heirlooms or antiques. Be sure to include the contents of any safe deposit boxes. too. If you intend to leave specific personal property to certain individuals, start outlining your wishes in a list for eventual inclusion in your will.
Creating a will may seem a bit daunting, but it does not have to be a complicated or overwhelming process. In fact, you can learn how to quickly and easily create a free digital will that is legally binding.
When to Seek Professional Legal Assistance
While it’s not necessary to involve an attorney in the creation of your will, it may be helpful depending on the complexity of your assets and your personal relationships with the heirs of your estate. Since a will is a legal document, you might feel more comfortable seeking legal advice and support from a trusts and estates attorney who can offer you professional expertise and guidance in drafting it.
Once your will is written, it needs to be signed. You might need to sign it in the presence of witnesses, and they also may need to sign it. Often, these witnesses cannot be named as beneficiaries in the will. An attorney can help you obtain these signatures, and the signees do not need to see the contents of your will. Some states require that your signature be notarized as well.
Where to Store Your Will
After your will is written, signed and notarized (if required), then the only thing left to do is to store your will in a safe but accessible place so that it can be found when needed. Some people decide to leave it with their attorney, some put it in a safe deposit box or home safe, and some keep it at home in a file cabinet. It's helpful if the executor or someone close to you knows its location and how to access it. In most cases, a probate court will need access to your original will before it can process your estate, so it’s important to store your will with care to ensure nothing happens to it.
Intestacy & Probate Court
Intestacy occurs when someone dies without a will. When this happens, the person is said to have “died intestate.” Because an individual who has died intestate lacks any kind of will or estate planning document, the state’s intestacy rules will determine who will inherit the decedent’s assets. These intestacy rules are administered by the probate court. Consequently, the future of the estate in this case is dictated entirely by the probate court and the laws of the decedent’s state of residence – hence, the importance of writing a legal will to make sure your wishes are followed rather than relinquishing decision-making about your assets to the state laws of intestacy.
A will is an important document to have, and it can be changed at any time (in most cases). If you don't have this documentation in place, take some time to think about the future of your assets and consider talking to your attorney for more information.