What Should I Include in My Will?

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It can be challenging to think about your own death. The idea seems morbid, uncomfortable, and the topic can bring up a lot of unpleasant questions for you and your loved ones to consider. But creating a will gives you greater control over what happens to your personal effects when you die, and this simple document can save a lot of heartache for those who survive you. 

Having a will ensures that your wishes are clearly defined and that your loved ones know they are acting in your best interests.  Taking the time to put one’s affairs in order can actually be quite cathartic. In the long run, most people find that it really is worth the effort and temporary discomfort.

What is a Will?

Simply put, a will is a written set of instructions for how one’s estate should be managed after death. Wills vary in length, content, and complexity, depending on your state’s laws regarding wills, the size of your estate, and how specific your preferences happen to be.

Who are the Key Players in a Will?

Generally speaking, the main people involved in a will are as follows:

  • The testator makes the will.
  • The devisee(s) are those upon who the testator confers property through the will.
  • The executor or representative is the person who will carry out the wishes specified in the will, appointed by the testator.
  • The guardian is the person who will care for any dependents (e.g., minor children) in the event of the testator’s death.

It is common for wills to designate an alternate executor and guardian if the first choice cannot perform their duties. It’s crucial for each of these individuals to fully understand their responsibilities in their respective roles, and to be willing to complete these duties.

What Should I Include in My Will?

The inclusions (or “provisions”) of a will vary widely from one person to the next , as they are based on the testator’s individual preferences. Many people have very specific wishes to include in their will, or large estates that need careful planning for dissemination. On the other hand, some people have few concerns about what happens to their personal effects after they die and may only have a simple request or two. What should be included in your will depends entirely on your specific situation. 

Ask yourself the following questions to help you decide what to include in your will:

  • Who will care for my minor children or dependents?
  • How will I distribute my estate (e.g., property, remaining money)? Who will I appoint to distribute my estate?
  • Who will benefit from my estate, and how much will each beneficiary receive?
  • What funds will pay for any death taxes?
  • Are there any charitable causes to which I would like to donate some of my estate? 
  • Do I want a trust established in my name after I die? Who will benefit from this trust?
  • Is there anyone I would like to exclude from my will?

An experienced estate planning attorney will ensure that your estate goes where you intend, promptly and directly, and with minimal taxation upon your death. He/she will understand your state’s laws intimately and ask specific questions to tailor your will so that it aligns with your unique goals and needs. Additionally, an experienced attorney will help you create a will that is as clear as it needs to be, to avoid future confusion for your beneficiaries and executor(s). 

What Makes a Will Valid?

State laws vary in what they require for a will to be considered valid, but the most common requirements include:

  • The testator is a legal adult (at least 18 years old) and of sound mind.
  • The will appoints an executor.
  • The will includes at least one provision with instructions for the handling of property, appoints a guardian for dependents, or both.
  • The will includes a statement that identifies the document as the testator’s will.
  • The will is typed (unless your state allows for handwritten wills).
  • The will includes the signatures of (1) the testator and (2) at least two witnesses (who are legal adults, are not beneficiaries in the will, and have signed the will in the testator’s presence).

While not necessary to validate the will, getting it notarized can simplify court proceedings if the will’s authenticity is challenged after the testator’s death.

What Happens if I Die Without a Will?

Dying without a will (or dying “intestate”) is an unfortunately common situation, and one that frequently causes undue stress, conflict, and prolonged waiting periods for your loved ones. In these cases, your state will decide how to divide your property, under the terms of state intestacy laws. The division of your estate depends on what surviving relatives you may have and the relationships you have to them. Intestacy laws can be especially devastating for surviving domestic partners or unmarried, cohabitating couples. The breadth of recognition paid to domestic partnerships varies from state to state, and most states do not recognize unmarried couples as relatives.

A Will Brings Peace of Mind

Even if this is not your situation, talking to a qualified estate lawyer about your options can bring peace of mind for you and your loved ones. Estate planning can be complicated. Through conversations with your loved ones or an attorney at the Law Offices of Hoyt & Bryan, you may find that you have more opinions about the division of your estate than you initially thought. Simply starting with a consultation can clarify what steps you would like to take moving forward.

August 28, 2020 · Tim Kevan · Comments Closed
Posted in: Uncategorized