Writing a last will and testament can be a daunting task. While no one likes to think about death, completing your end-of-life documents is one of the most important things you can do for yourself and your loved ones. When getting ready to create a will, just as you would any legal document, it may feel like you’re trying to understand a foreign language. To help navigate a process you’ve likely never gone through before, we’ve created this guide, complete with definitions of legal terms you’ll come across as well as some commonly asked questions.
What Is A Last Will And Testament?
A last will and testament, also called a will, is a legal document executed after your death that outlines the distribution of your assets to your beneficiaries. It can also dictate your wishes regarding matters such as charitable donations or care for your dependents.
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What Is A Will For?
A will is simply legal protection to ensure that your wishes are followed after you pass. For instance, if you have dependents, you could dictate your wishes regarding their care in a will – this is especially crucial if you’re the primary caregiver for an ailing loved one or have minor children, as you can appoint a legal guardian. This document would also outline how to distribute your estate, including inheritance allocation, burial and funeral wishes and any charitable donations you’d like to make. Essentially, a will eliminates any uncertainties your loved ones might have around your final wishes.
The Role Of An Executor
An executor, also known as a personal representative, is appointed to carry out a deceased person’s wishes specified in their will. This is no small task, as they will be responsible for managing and protecting your estate's financial assets. Before any assets can be handed down, your executor must use your assets to pay off any debt you owe. If your executor fails to do so, your family will be liable for your expenses. An executor can be anyone you trust, including family members, close friends, accountants or lawyers.
A beneficiary is a person or organization (perhaps a hospital or charity) who will receive your assets. There is no limit to the number of beneficiaries you can name in your will. A beneficiary and executor are similar, but they are different parties under the law. An executor’s role is to manage your property after you die, whereas a beneficiary will inherit your estate on your behalf. If you’re wondering if your executor can be a beneficiary, the answer is yes; however, you do want to be certain that your executor is knowledgeable about finances. Your beneficiaries, on the other hand, don’t necessarily need the same knowledge.
So, you’ve read up to this point and may be convinced it’s time to write your last will and testament. It will likely give you some peace of mind and your family and friends will appreciate you for taking that step! However, it’s important to note that depending on your situation, your estate plan might require more legal documents than a will. While a will is a crucial element in a comprehensive estate plan, to protect yourself and your loved ones in the case of illness, injury or death, your plan should also include:
A Power Of Attorney
A power of attorney (POA) is a legal document that gives a designated person the authority to act on behalf of someone else. The person who receives the authority is referred to as an attorney-in-fact or agent, and the subject (you) would be the principal. There are four types of POAs to consider when making end-of-life arrangements:
- Durable: A durable POA gives the attorney-in-fact the authority to control legal, financial or property matters related to the subject – whether the principal is mentally capable or incapacitated. A durable POA does not grant the agent authority over your health matters, meaning the agent cannot take you off life support, request that you stop or start certain medications, or make any other decisions about your health care affairs. The agent can, however, pay for medical bills on your behalf.
- Springing: A springing POA gives an agent complete authority over your affairs, health care and financial, just like a traditional POA. The difference between the two is that unlike a traditional POA, springing POAs are only effective if the principal becomes incapacitated. This POA comes with complications because it’s not always easy to determine if someone is completely incapacitated. If you suffer from dementia, for instance, it could be difficult to determine when you can no longer handle your affairs. Therefore, it could take months before an agent can be granted authority over your estate.
- Health care: Unlike a traditional power of attorney, an HPOA gives your agent (patient advocate) authority for your health care only.
- Financial: This POA is limited to financial assets, only allowing the attorney-in-fact control over your financial assets.
When you die, any active POA will be null and void, and the wishes outlined in your will would then be put in effect. There is no standard power of attorney form because state laws and procedures vary.
A will can only go into effect after you die, but a living trust can either be used to manage assets during your lifetime or after death. A living trust (also known as a revocable trust) is a legal arrangement that allows the owner of a property to transfer ownership to a trust, and then transfer ownership of this trust to a beneficiary. The upside of this arrangement is that you will retain control of your property during your lifetime.
Living trusts are a helpful tool for estate planning as they help avoid the cost and hassle of probate (having to prove the validity of a will in court) and ensure that assets are more rapidly and reliably dispensed to your beneficiaries.
Types Of Wills
There are many different types of wills, each used for different situations. The one that works best for you will depend on your specific requests and requirements. An estate planner can explain the advantages and drawbacks of each type of will and help to ensure that you’re satisfied with your choice.
Although your will can be drafted by a lawyer, a self-proofed will is one you can write yourself. It’s typed up and, if it’s written by the individual, it’s typically used by those who have a smaller estate. Witnesses will be required to sign an affidavit to the document’s validity in front of an official, such as a notary public.
A joint will is a single will shared by two people who are usually married. For example, if one spouse dies, he or she might have the will state that all property will go to the surviving spouse, and when they are both deceased, everything will go to their beneficiaries.
Although similar in intention to a joint will, mutual wills involve two almost identical documents for each spouse. Both state that in the event of your death, you intend to leave everything to your spouse.
This will does not involve any lawyers or legal documents. Instead, the document is handwritten, signed and then dated, all by the individual. Although this is the easiest and cheapest way to create a will, many states do not consider holographic wills to be valid, so be cautious.
Similar to a holographic will, no lawyers or documents are involved. This will is spoken aloud to witnesses while the individual is on their deathbed. Not all states recognize this will as valid, and those that do may have specific requirements.
A living will relates your wishes to your doctor and loved ones in the event that you become unable to speak for yourself. In essence, this serves as a health care directive as to how you want to be treated if you fall into a coma or a vegetative state.
A simple will is common for those with a smaller estate. This option is written or typed by your attorney or yourself. A simple will requires one or two witnesses, depending on your state laws.
How To Write A Simple Will
You may choose to write a will yourself or have a legal professional draft one for you. If you choose to do it yourself, it’s a lot easier than you think if you have a simple estate; however, if you have a large estate with many moving parts, you should consider hiring an estate attorney.
While there are many ways to create a will, a simple will consists of:
1. A title labeling the document your last will and testament: This step may sound silly, but it’s crucial that your will is labeled as such. If you go back and revise your will, you should also include the revision date and version number to avoid any confusion.
2. An executor: As stated before, an executor is the person you appoint to carry out the wishes you’ve specified in your will. This can be anyone you trust.
3. A guardian for your dependents: If you have minor children, or are responsible for an ill loved one, it’s crucial that you name the people who will take care of their needs.
4. Records of your estate: It’s important that you list everything that belongs to you in your will, debts included.
5. Your beneficiaries: Carefully list who you would like to inherit different parts of your estate. Your beneficiaries can be anyone or any organization that your heart desires, and you can add as many beneficiaries as you please. For instance, if you’d like for your child to inherit your home, a friend to inherit $15,000 and a donation of $10,000 to be made to The Children’s Hospital, that’s okay – just be sure to clearly state that in this section.
6. A residuary clause: If there are any residual assets to be accounted for, include it in this section. For example, “The remaining cash assets which have been outlined in this will should be given to John Doe.”
7. A signature from yourself and at least two witnesses: You may need two or three witnesses depending on your state’s laws, so be sure to check before you complete this section. Your witnesses must be at least 18 years old and able to be located to testify about the document, if necessary. You don’t have to disclose the contents of your will to the witnesses, just that the document that you’re signing is your will and they’re your witnesses.
8. Notary: State laws vary, so you may or may not have to have your will notarized.
Final Will And Testament FAQS
How much does it cost to write a will?
If you choose to write the will yourself, there are a few low-cost options available to you. You can either write your own following a template or fill out a preconstructed form. These forms can be found online for free, or kits can be purchased at your local office supply store. Whichever you choose, ensure that your document meets all the legal requirements, as these can be different from state to state. These two options work best for people with small estates and no special requirements.
You can also have a will written by your lawyer. They may charge a flat fee that typically ranges between $300 – $1,000, or an hourly fee, which will depend on the lawyer, your will and your location. If your needs are more complicated, this option, although more expensive, will ensure your will is properly constructed.
Do I need a witness?
Yes. In fact, you will probably need two or three, depending on the state. Witnesses must be there to verify that you were of sound mind when you signed the will. Witnesses must be adults who are not a beneficiary or an executor. If necessary, they could be called to testify under oath that they watched you sign the will of your own accord and were under no pressure to do so.
What is intestate?
Intestate is the term used to describe if a person dies without a will. In the case of intestacy, your estate will go through probate court to determine who inherits your assets. In most states, your estate will go to your spouse or children. The probate would also assign an executor to manage the distribution of your money to pay off debts.
The Bottom Line
Without the legal protection a will provides, those you leave behind could be forced to spend time fighting in probate proceedings or be denied the assets you wanted to leave them altogether. Your other requests could also be ignored, such as where you wish to be buried and how. Planning ahead and ensuring that your final wishes are properly recorded will provide peace of mind to both you and your beneficiaries.
If you want to know more about making sure your wishes and beneficiaries are taken care of, check out our Learning Center, which covers more topics, including what happens if a beneficiary inherits a property with a mortgage.