10 Things You Should Know About Writing a Will
The laws governing wills vary from state to state. If you aren't familiar with them, consider consulting a knowledgeable lawyer or estate planner in your area. Before you do, brush up on these 10 things you should know about writing a will.
What is a will?
A will is simply a legal document in which you, the testator, declare who will manage your estate after you die. Your estate can consist of big, expensive things such as a vacation home but also small items that might hold sentimental value such as photographs. The person named in the will to manage your estate is called the executor because he or she executes your stated wishes.
A will can also serve to declare who you wish to become the guardian for any minor children or dependents, and who you want to receive specific items that you own — Aunt Sally gets the silver, Cousin Billy the bone china, and so on. Someone designated to receive any of your property is called a "beneficiary."
Some types of property, including certain insurance policies and retirement accounts, generally aren't covered by wills. You should've listed beneficiaries when you took out the policies or opened the accounts. Check if you can't remember, and make sure you keep beneficiaries up to date, since what you have on file when you die should dictate who receives those assets.
An administrator will most likely be a stranger to you and your family, and he or she will be bound by the letter of the probate laws of your state. As such, an administrator may make decisions that wouldn't necessarily agree with your wishes or those of your heirs.
And while you're working on your will, you should think about preparing other essential estate-planning documents. "When you create or update your will, that's also a good time to think about other advance-planning tools like financial and health care powers of attorney to ensure that your wishes are carried out while you're still alive," says Naomi Karp of AARP's Public Policy Institute.
In particular, separate wills allow for each spouse to address issues such as ex-spouses and children from previous relationships. Ditto for property that was obtained during a previous marriage. Be very clear about who gets what. Probate laws generally favor the current spouse.
Not all states require a will to be notarized, but some do. Check. You may also want to have your witnesses sign what's called a self-proving affidavit in the presence of a notary. This affidavit can speed up the probate process because your witnesses likely won't be called into court by a judge to validate their signatures and the authenticity of the will.
One of the most important things your will can do is empower your executor to pay your bills and deal with debt collectors. Make sure the wording of your will allows for this, and also gives your executor leeway to take care of any related issues that aren't specifically outlined in your will.
A letter of instruction, which isn't legally binding in some states, can be written more informally than a will and can go into detail about which items go to whom. You can also include specifics about any number of things that will help your executor settle your estate including account numbers, passwords and even burial instructions.
Another option is to leave everything to one trusted person who knows your wishes for distributing your personal items. This, of course, is risky because you're relying on this person to honor your intentions without fail. Consider carefully.
A probate court usually requires your original will before it can process your estate, so it's important to keep the document safe yet accessible. If you put the will in a bank safe deposit box that only you can get into, your family might need to seek a court order to gain access. A waterproof and fireproof safe in your house is a good alternative.
Your attorney or someone you trust should keep signed copies in case the original is destroyed. Signed copies can be used to establish your intentions. However, the absence of an original will can complicate matters, and without it there's no guarantee that your estate will be settled as you'd hoped.
How often does a will need to be updated?
With that in mind, you may want to revisit your will at times of major life changes. Think of pivotal moments such as marriage, divorce, the birth of a child, the death of a beneficiary or executor, a significant purchase or inheritance, and so on. Your kids probably won't need guardians named in a will after they're adults, for example, but you might still need to name guardians for disabled dependents. A rule of thumb: Review your will every two or three years to be safe.
Who has the right to contest my will?
Contesting a will refers to challenging the legal validity of all or part of the document. A beneficiary who feels slighted by the terms of a will might choose to contest it. Depending on which state you live in, so too might a spouse, ex-spouse or child who believes your stated wishes go against local probate laws.
A will can be contested for any number of other reasons: it wasn't properly witnessed; you weren't competent when you signed it; or it's the result of coercion or fraud. It's usually up to a probate judge to settle the dispute. The key to successfully contesting a will is finding legitimate legal fault with it. A clearly drafted and validly executed will is the best defense.
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