What Is a Will? Why It's Important & Where to Start

Key Takeaways

• A Will is a written document that expresses your final wishes for the distribution of your assets, care of dependents, and other important matters after your death.
• It is important to have a Will to ensure that your estate is handled according to your specific instructions and not subject to default laws.
• A Will can designate an executor, distribute assets, address disinheritance, assign guardianship for minors, and specify gifts and donations.
• Different types of Wills include testamentary wills, joint wills, holographic wills, noncupative (oral) wills, and online wills.
• While seeking legal advice is not required, it can be beneficial, especially for complex estates.

Why Is It Important To Have a Will?

A Will is one of the fundamental estate planning documents that ensures your personal and financial matters are handled according to your wishes after you pass away.¹ The benefits of a will are numerous:

• Asset Distribution: A will provides clear instructions on how you want your property and assets to be distributed after your death. Without a will, your estate is distributed according to state laws, which might not align with your wishes.
• Final Wishes: A will provides a platform to express your final wishes and make sure your loved ones know what you want.
• Guardianship of Minor Children: If you have children under the age of 18, a will allows you to appoint a guardian for them, ensuring they are cared for by someone you trust should you pass away.
• Reducing Family Disputes: A will can help prevent family members' conflicts by outlining your exact wishes, thereby minimizing disputes over inheritance or disinheritance.
• Speeding Up the Probate Legal Process: A will can expedite the probate process because the court has a clear directive to follow, which can be quicker and less expensive than without a will.
• Protects Assets: A will can safeguard your assets from potential claims by creditors, ensuring they are directly distributed to your designated beneficiaries rather than your estate.
• Tax Planning: Through a will, you can plan for potential tax consequences for your heirs and possibly minimize the tax burden on your estate.
• Charitable Contributions: A will allows you to leave a legacy through charitable donations, which can also have tax benefits for the estate.

Who Should Have a Will?

Anyone who has assets or dependents should have a legal will. This includes:

• Anyone with minor children: If you have minor children, your will should appoint a guardian who will care for them in the event of your death.
• Anyone who is married or in a civil union: If you are married or in a civil union, your will should name your spouse or partner as your beneficiary. If you do not have a spouse or partner, you can name any other person or entity as your beneficiary.
• Anyone with assets: If you own any assets, such as a home, car, bank accounts, or investment accounts, you should have a will to ensure that they are distributed according to your wishes.
• Anyone who is older than 65: The older you are, the more important it is to have a will. This is because the likelihood of you dying within the next few years increases with age.
• Anyone who has special needs: If you have a child with special needs, you should have a will to ensure that their care is provided for.
• Anyone who is concerned about probate: If you are concerned about the cost and hassle of probate court, a will can help you avoid it.
• Anyone who wants to express their final wishes: If you want to tell your loved ones how you want your funeral to be conducted, who you want to receive certain items of personal property or any other final wishes, a will is the place to do it.

Even if you do not think you need a will, it is always a good idea to have one.

The Different Types of Wills

There are various types of wills, each with specific features and legal stipulations. Here's a brief overview of the different types:

• Simple Wills: Basic wills that typically distribute assets and may appoint a guardian for minor children.
• Testamentary Trust Wills: Include the establishment of a trust upon death for beneficiaries, often used for managing inheritance for minors.
• Living Wills: Not actually a will in the traditional sense, a living will documents your advance healthcare directive that states your wishes regarding medical treatment if you become incapacitated.
• Joint Wills: Created by two people (usually spouses) in one document, which states that when one spouse dies, the estate passes to the surviving spouse, and after the survivor's death, the estate goes to a third party.
• Mirror Wills: Also known as Reciprocal Wills are similar to a joint will but involve two separate wills where each party has a will mirroring the other's provisions.
• Mutual Wills: Similar to Mirror Wills, it includes a legally binding provision that both individuals must agree to any changes.
• Pour-Over Wills: Designed to transfer all remaining assets to a trust upon death.
• Holographic Wills: Written and signed entirely in the handwriting of the testator (person making the will), often without witnesses and not recommended due to the potential for challenges.
• Nuncupative Wills: Also known as Oral Wills, are spoken before witnesses but are often limited in what they can convey and are not recognized in all jurisdictions.
• Deathbed Wills: Written during the final moments of life, these wills usually prove less effective and more troublesome.
• Electronic Wills: A digital document created, signed, and validated through electronic means. It's important to note that electronic wills are not recognized in all jurisdictions.
• Digital Wills: Outlines how your online accounts, digital assets, and digital presence should be managed and distributed upon your death. Compliments a traditional will.

Each type of will serves different purposes and comes with distinct legal considerations. It's important to choose the type that best fits your circumstances and to ensure it meets your jurisdiction's legal requirements.

What Is The Difference Between A Will And A Trust?

Wills and trusts are both estate planning tools that are used to transfer your assets to your beneficiaries after you die. However, each of them works in a different way.

• A Will is a legal document that specifically outlines how you want your assets distributed upon your death. It also can be used to name the executor of your estate as well as the future guardian(s) of your minor children.
• A Trust is a legal arrangement that permits a third party (called a trustee) to hold and manage assets on behalf of your estate’s beneficiaries. Different types of trusts follow specific rules and offer various benefits to meet your financial needs.

Essential Components Of a Will

The components of a Will are the essential elements that make up a legally valid document. These components ensure that the will is clear, enforceable, and accurately reflects your wishes.

• Testator: The testator is the individual who is creating the will and outlining their wishes for the distribution of their assets and the care of their dependents upon their death.
• Beneficiaries: The beneficiaries are the individuals or entities who will inherit your assets upon your death. The will should clearly identify each beneficiary designation and specify the share of assets they are to receive.
• Executor: The executor is the person responsible for carrying out the terms of the will. They are responsible for managing your estate, distributing assets to beneficiaries, and paying debts and taxes. You should choose an executor who is trustworthy, responsible, and capable of handling the tasks involved.
• Witnesses: Witnesses are individuals who sign the will to attest to its validity. They should be present when you sign the will and confirm that you are of sound mind and acting voluntarily. The number of witnesses required may vary depending on state law.
• Signatures: The will must be signed and dated by the testator and the witnesses. Your signature should be their legal signature, and the witnesses should sign their names and provide their addresses.
• Declaration: The declaration is a statement at the beginning of the will that identifies the testator, confirms their age and domicile, and declares that the document is their Last Will and Testament.
• Revocation Clause: The revocation clause states that the will revokes all previous wills and codicils made by the testator.
• Disposition of Assets: This section outlines how your assets will be distributed among the beneficiaries. It should clearly specify the assets to be distributed and the respective shares for each beneficiary.
• Guardianship Provisions (if applicable): If you have minor children, this section should appoint guardians to care for them in the event of your death. The guardians' responsibilities and duties should be clearly defined.
• Special Instructions: This section can include any special instructions or requests you may have, such as funeral arrangements, the care of pets, or specific bequests of personal property.
• Attestation Clause: The attestation clause is a statement signed by the witnesses, confirming that they were present when you signed the will, that you were of sound mind and acting voluntarily, and that they signed the will as witnesses.

Remember, while these are the essential components of a will, it is always advisable to consult with an experienced estate planning attorney to ensure your will is legally sound, enforceable, and tailored to your specific circumstances and wishes.

Steps To Creating a Will

Creating a Will is a crucial step in estate planning, ensuring that your assets are distributed according to your wishes and that your loved ones are provided for. Creating a Will generally involves the following steps:

1. Decide on the Type: Choose the type of will that best suits your needs, such as a simple will, a testamentary trust will, or a joint will. Decide if you want to include a no-contest clause to discourage challenges of the will.
2. Inventory Your Assets: Compile a comprehensive list of your assets, including property, investments, bank accounts, and personal items of value.
3. Identify Beneficiaries: Decide who you want to inherit your assets, including primary beneficiaries and contingents.
4. Choose an Executor: Appoint a trusted individual to carry out the terms of your will.
5. Appoint a Guardian: If you have minor children, select a guardian to care for them in your absence.
6. Funeral and Burial Instructions: While not legally binding, clearly expressing whether you want to be buried or cremated and any funeral service wishes helps inform your executor.
7. Be Specific About Bequests: Clearly state any specific gifts or donations you want to leave to individuals or organizations.
8. Plan for Debts and Taxes: Provide instructions for the payment of your debts and any estate taxes. Inheritance tax is typically paid by the beneficiary.
9. Digital Asset Instructions: Outline your digital assets preferences for accessing, managing, or closing email accounts, social media, cloud storage, and other online accounts and assets after passing.
10. Consult an Attorney: Especially for complex estates, consult with an attorney to ensure your will complies with state laws and truly reflects your wishes.
11. Sign the Will: Execute your will in accordance with state laws, which typically require signing in front of witnesses.²
12. Store It Safely: Keep your will in a safe, accessible place and inform your executor where it is stored.
13. Review and Update: Regularly review your will to ensure it reflects your current circumstances and wishes. Update your will as needed to address changes in your assets, beneficiaries, or personal life.

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.³ Remember, laws vary, so ensure your Will complies with local legal requirements.

Legal Considerations of a Will

By understanding these legal considerations and seeking professional guidance, you can ensure your Will is valid, enforceable, and effectively carries out your wishes for the distribution of your assets and the care of your loved ones.

• Capacity to Make a Will: When making the will, you must have the testamentary capacity to understand the nature of the document, the assets they are distributing, and the consequences of their decisions. This means you must be of sound mind and not under any undue influence or coercion.
• Formal Requirements: Wills must adhere to specific formal requirements to be considered legally valid. These requirements may vary by state, but generally, a will must be in writing, signed by the testator in the presence of two witnesses, and dated.
• Witness Requirements: Witnesses play a crucial role in attesting to your capacity and voluntary execution of the will. They must be competent adults, not beneficiaries, and present when you sign the will.
• Signing and Dating: Your signature is essential for the will's validity. The signature should be your legal signature, and the will should be dated to indicate when it was executed.
• Revocation and Alterations: A will can be revoked or altered by creating a new will, tearing up or burning the original will, or executing a codicil, which is a legal document that modifies or amends an existing will.
• State Laws: Wills are governed by the laws of the state where you reside at the time of your death. It's important to understand your state's laws regarding wills, including requirements for witnessing, signing, and revocation.
• Legal Challenges: Wills can be challenged in court if there are questions about your testamentary capacity, undue influence, or compliance with legal requirements. Having a well-drafted will and adhering to proper formalities can help minimize the risk of legal challenges contesting a will.
• Intestate Succession: Dying without a valid will, known as dying intestate, means the state will distribute your assets according to the laws of intestate succession, which vary by state.
• Professional Guidance: While it's possible to create a simple will yourself, seeking legal counsel from an experienced estate planning attorney is highly recommended. An attorney can ensure your will is legally sound, tailored to your specific circumstances, and complies with all applicable state laws.

Creating a will is a powerful step towards a secure future for your loved ones. Don't leave their well-being to chance—take control by documenting your wishes.

Frequently Asked Questions

What is the biggest mistake with wills?

One of the biggest mistakes with wills is not keeping them updated to reflect life changes, which can result in unintended consequences for your estate. Additionally, vague language and overlooking details like digital assets or backup executors can complicate your final wishes.

What is the main purpose of a will?

A will specifies how your assets and obligations should be handled after you're gone. It acts as a legal roadmap to ensure your wishes are respected, helping to prevent disputes and making it easier for your family to manage your estate.

What is an executor of a will?

An executor is designated to carry out the instructions outlined in a will after a person's death. Their responsibilities include managing the estate by gathering assets, paying debts and taxes, and distributing the remaining assets to the beneficiaries.

What is a trustee in a will?

A trustee named in a will is a person or organization appointed to oversee the assets in a trust established by the will for the benefit of specified beneficiaries. The trustee's responsibilities include safeguarding the trust assets, investing them prudently, and distributing them to the beneficiaries according to the terms outlined in the will.

What happens if a will is not filed?

If a will is not submitted to the court after someone passes away, it cannot be legally enforced. When someone dies without a will, intestate laws govern the distribution of assets, potentially disregarding the deceased's wishes as expressed in an unfiled will.

Sources

1. Legal Information Institute. https://www.law.cornell.edu/wex/will.
2. American Bar Association - Introduction to Wills. https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/an_introduction_to_wills/.
3. Free Will from Fabric by Gerber Life, a member of the Western & Southern Financial Group Family of Companies. https://www.westernsouthern.com/about/family-of-companies.