No one likes to think about the fact that they’re going to die one day. That may be why so many Americans put off estate planning. They assume they have plenty of time left to live, so they’re in no hurry to make a will.
But as the COVID-19 pandemic reminded us, life and death are uncertain. You can never be sure how long your life will be. And by making a will, you can be sure your personal property goes to your loved ones when you’re gone.
Whatever you do, don’t assume you don’t need a will because of your life stage or because you aren’t wealthy. Once you learn what a will really is and what goes in it, it’s easy to see why almost everyone needs one.
What Is a Will?
A will is a legal document that dictates who gets your belongings after your death. That includes both financial assets and belongings with only sentimental value. It can also establish who cares for your minor children.
Having a will makes the probate process — the court’s process for distributing a deceased person’s assets — much easier for your family members. If you leave a will, probate is simply a matter of proving the will is valid and carrying out its instructions.
But without a will, probate becomes a long, complex process of figuring out how to divide your assets under state law. Your legal heir might turn out to be some cousin you never got along with. And even if your loved ones inherit, they might have to wait weeks or even months for the legal system to figure out who gets what.
What Does a Will Cover?
A will can answer many questions for your heirs. It explicitly lays out your wishes about:
- The Distribution of Your Property. Property includes assets such as bank accounts, real estate, investments, and business holdings. You can leave these assets to family members, business partners, friends, or charitable organizations.
- Specific Bequests. Some personal property is worth little in dollars but has sentimental value. Examples include photo albums, books, or family heirlooms. Your will can dictate which specific belongings go to which people.
- The Care of Your Dependents. If you have minor children, one crucial function of a will is to name a legal guardian for them. If you also have children of the furry, feathered, or scaly variety, your will can outline what happens to your pets after you die.
- Your Final Wishes. Your will can lay out your wishes about what happens to your body after you die. You can outline what type of funeral you want and whether you prefer burial, cremation, or some other option, such as donating your body to medical science.
A will often works in conjunction with other documents expressing your wishes about the end of your life. An advance health care directive (living will) outlines your wishes about end-of-life medical care. And a financial power of attorney gives another person the authority to handle your finances if you lose the ability to do it yourself.
Types of Wills
There are multiple ways to make a will, depending on the specific needs of the testator, the person making the will. However, not all will types are created equal in the eyes of the law. Some are easier to contest than others, so choose which type to make carefully.
- Testamentary Will. Also known as a last will and testament, this will requires you to prepare it and sign it in front of witnesses. It’s the most likely to withstand legal challenges from family members or business associates.
- Holographic Will. You write and sign this type but don’t have it witnessed. Some states don’t recognize holographic wills, and all states require some proof the testator wrote them and was of sound mind at the time. You would only use this type in an emergency if you had only a short time to live.
- Oral Will. A spoken statement of your wishes in front of witnesses is important but may not be legally binding. Most courts don’t accept any will that isn’t in writing.
- Pour-Over Will. You need this type of will if you have a trust — a legal entity that manages your property after your death. This type of will simply “pours” your assets into the trust.
- Mirror Will. These separate wills for each partner are nearly identical. For example, they might both pass assets to the surviving spouse and then to the children. But one spouse can change their will without the other’s consent, in life and in death. It’s the most common type of couples will.
- Mutual Will. This couples will ensures that when one of you dies, the other is still bound by its terms. One purpose is to ensure your property goes to your children and not to a new spouse or their children. Always involve a lawyer.
- Joint Will. A joint will distributes both partners’ assets at once. It’s usually a bad idea because spouses seldom die at the same time, and one spouse’s situation may change after the other’s death. Some states don’t even allow joint wills.
Why Do You Need a Will?
Some people assume they don’t need to make a will. They think it doesn’t matter because they don’t have any dependents or enough assets. And if they’re young, they think there’s no need to worry about it yet.
But having a will makes sense for nearly everyone. You can’t predict when you will die. And in some cases, it’s not obvious who your legal heirs will be if you die intestate (without a valid will).
Reasons to make a will include:
- To Provide for Your Loved Ones. You can assign assets to the friends and family members who need them most. For instance, you can leave your house to the person who lives there now or leave your children enough cash to put them through college.
- To Keep Assets Out of the Wrong Hands. Just as important, your will can dictate who doesn’t get your assets. If you die intestate, your whole estate could go to an estranged spouse because you were never legally divorced or to a sibling you haven’t seen since your grandmother’s funeral rather than your partner of 10 years.
- To Express Your Love. You can also leave belongings with sentimental value, such as a photograph, to specific people. It’s a way to show them how much they mean to you and give them something to remember you by. It also ensures your friends and family don’t fight over who gets what after you’re gone.
- To Name a Guardian for Your Children. If you don’t name a guardian in your will, a court must decide who raises your children after your death. They could be left to the care of a relative they’ve never even met rather than a family friend they know and trust.
- To Protect Your Pets. You can name a caretaker and even leave money to pay for their care. That ensures they don’t end up in a shelter or worse. Most state’s laws treat animals like property. They could end up with your greedy cousin who wants to sell or show them rather than your best friend who knows all their favorite toys and treats.
- To Support Charities. You can leave your assets to charitable organizations that are important to you and continue to do good in the world even after you’ve left it.
- To Save Your Heirs Trouble. Losing a loved one is always stressful. It’s even worse when that person dies without a valid will. By making a will, you can make the probate process much faster and easier on your heirs.
- To Reduce Estate Taxes. A well-designed will can minimize estate taxes and inheritance taxes for your heirs. For instance, you can split up your estate so that no one person inherits enough to owe inheritance taxes. Or you can reduce the taxable value of your estate by leaving more money to your spouse, who typically doesn’t have to pay tax on it, or to charity.
How to Prepare & Change Your Will
One common way to make a will is to hire a lawyer. It ensures your will follows your state’s laws and reduces the risk of errors that could keep your assets from going to the right person.
However, as long as your circumstances are relatively simple, it’s possible — and much cheaper — to make a perfectly legal will without a lawyer’s help. For instance, you can use standard-language boilerplate forms that allow you to fill in the names of your heirs and the amounts of money and property left to each one. You can also create a customized will with online will-making software. You can even write your own will by hand.
Whichever method you choose, the basic process starts with identifying your assets. Add up the value of all your belongings, including your home and financial accounts. Subtract the value of any debts you owe since those will come out of your estate.
Once you know how much is left, decide how to divide it up. If you want to leave specific belongings to certain people, spell out those bequests in the will. If you have children, name a legal guardian for them.
Lastly, appoint an executor. The executor administers the estate and ensures your wishes are carried out. Choose someone you expect to outlive you, and get their permission before naming them in the will.
Once you’ve made your will, take steps to make it legal. That usually involves signing it in front of witnesses. In many states, these must be people who aren’t beneficiaries. Some states also require a will to be notarized.
Even after you’ve signed it, your will isn’t set in stone. You can update it at any time, either replacing it completely or adding a codicil, which is a type of amendment. If you redo the whole will, you can use the old one as a reference to speed up the process.
Where to Keep Your Will
Your will is an important document that needs to be in a safe place. But it’s equally important that it be accessible to your heirs. That rules out a safe deposit box, which may be sealed after your death.
One suitable option is to give the original will to your lawyer or the executor. Alternatively, you can keep it in a waterproof and fireproof safe at home. Just ensure the executor has the keys or password.
For extra protection, make copies of your will and store one in each of those locations. You can also store a digital copy in a secure online vault. Having a copy can help establish your intentions in case anything happens to the original.
Still not convinced it’s worth the time and expense to make a will? Perhaps these questions and answers will help you decide.
What Happens if I Die Without a Will?
It depends on where you live. If you die intestate, your state’s laws determine who gets your belongings. In states with community property laws, all assets you acquired during your marriage automatically go to your spouse if you die.
Other states have formulas dictating how to divide an estate, such as half to a surviving spouse and half split among the children. Giving everyone their required share might require selling your home — even if someone is living in it.
If you have no spouse or children, your assets are likely to go to your nearest blood relations. That might mean your elderly, well-to-do parents inherit everything, while nieces, nephews, or cousins who could really use the money get nothing.
The task of dividing your belongings falls to a court-appointed administrator. That could be a surviving spouse or adult child, but it might be a stranger with no connection to you or your family. In either case, until the court names a representative, your assets are frozen, and your heirs have no access to them.
Also, if you have minor children with no surviving parent, the court must name a guardian for them. It’s typically a relative, but it may not be a relative they like. And if no relative is willing to take them, they could end up in foster care.
How Much Does a Will Cost?
That depends on what method you use. Hiring a lawyer to draft your will could cost anywhere from $300 to $1,500 or more. If you’re married, you can have a will for your spouse made at the same time for an extra few hundred.
Online will software is considerably cheaper. There are multiple quality will-making programs that cost anywhere from $20 to $160 for a single person. There are even one or two that can create a simple will for nothing.
Another inexpensive option is a do-it-yourself will kit. These can cost as little as $10. However, you must use care when choosing one to ensure the forms it includes are legal in your state.
Finally, you can draw up your own will for free. You can write it out by hand, type it, or even make a video. Wills made this way are legal, but they have to be properly witnessed according to your state’s laws.
What’s the Difference Between a Will and a Trust?
Instead of just giving the money to your heirs to use as they like, you can use a trust to dictate what happens to your assets after you’re gone.
There are several reasons to create a trust. You could set one up for the benefit of a minor child who can’t manage money on their own. The trust ensures the money goes into sound investments for the child to inherit when they grow up.
Trusts can also be a way to minimize taxes like federal estate taxes or state inheritance taxes. And money in a trust doesn’t have to go through probate, so the heirs get it right away.
Most trusts don’t deal with your entire estate. They dictate the disposition of a specific asset, such as a life insurance policy or piece of property.
However, some people with substantial wealth put most of their assets into a living trust. This document dictates how their money should be handled both before and after their death. These people need only a pour-over will to assign their assets to the trust when they die.
What’s the Difference Between a Will and a Living Will?
A will dictates what happens to your belongings after you die. A living will is about what happens to you before you die. This document dictates your wishes about medical care in the event you’re unable to make such decisions for yourself.
A living will can outline under what circumstances you want to receive life support and other end-of-life care. It can dictate what types of medical treatments you do or don’t consent to. And it can state your wishes about donating your organs after your death.
In some states, a living will also names a person to make decisions about your medical care if you’re unable to do so. In other states, you need a separate document called a medical power of attorney to do that.
Having a will makes sense for almost everyone. But for some people, it’s absolutely vital.
Anyone with children under 18 definitely needs a will or a separate guardianship document to provide for their care. And anyone with substantial assets needs a will to ensure those assets go to the right people — and to minimize estate taxes if their estate is truly massive.
A will is also essential for anyone living with a partner but not legally married. The law won’t treat this person as your spouse if you die intestate, so a will is the only way to ensure they get their share of your assets.
In short, for just a small investment of time, money, or both, you can purchase the peace of mind that comes with knowing your loved ones will be taken care of when you’re gone. That’s something you can’t put a price on.