What Is a Will and Why Do I Need One?
A last will and testament is a key legal document in any estate planBy Canaan Suitt, J.D. | Last updated on January 29, 2023
Use these links to jump to different sections:
- Reasons To Make a Will
- What Are the Requirements for a Will?
- What if I Need to Make Changes to My Will?
- Are There Types of Wills to Avoid?
- Questions for an Estate Planning Attorney
Everyone has an estate, regardless of how big or small it is. An estate includes any property you own, from real estate to personal property (cars, accessories, etc.) to financial assets like bank accounts, stocks, retirement accounts, and life insurance policies.
“A will is part of the universe of documents that disposes of your estate when you die and also sets the terms under which people are going to inherit,” says Maryland estate planning attorney Jeremy D. Rachlin.
The person who creates a will is called the testator. As a testator, you make your last wishes about your estate known through your will:
- How will your estate assets will be distributed?
- Who do you want to give assets to?
- Who do you not want to give assets to?
In addition to addressing these matters, a will “also appoints an individual who’s in charge of the process” of guiding a will through probate court and ensuring that your interests are represented.
“Many states call this person an executor, while others call them a personal representative,” says Rachlin.
A will can also nominate a guardian, which is an “important thing for folks who have minor children,” says Rachlin. A named guardian has “priority to the custody of any minor children if the children’s parents are unable to parent. [Appointment of a guardian] is a very important thing that can be included in a will.”
Many Americans don’t have a will, despite it being a relatively straightforward document to create and modify. This article covers some of the main reasons to make a will.
Reasons To Make a Will
Perhaps the ultimate reason to create a will is to have greater peace of mind about your and your loved ones’ future.
Here are some of the main ways that a will brings you greater peace of mind:
- Make your final wishes known. This is the key function of a last will and testament. Through a will, you give loved ones clarity about your intentions for your estate.
- Guide probate court procedures. Probate is the court-administered process of distributing your assets. With a will, probate will be guided by your plans.
- Beneficiary designations. Beneficiaries are the people or entities you name to receive assets from your estate.
- Avoid intestacy. If you die without a will, state laws known as intestacy laws kick in to determine how your estate will be distributed. Intestate succession can be considered as expanding in concentric circles from your closest relatives to your furthest relatives. Starting with surviving spouses, intestate succession proceeds to children, surviving parents, siblings, and more distant relatives.
- Name a personal representative. Also known as an executor, the personal representative is the person who will file your will with the local probate court and guide your will through the entire probate process, ensuring that your final wishes are fulfilled, and your estate’s best interests are protected. If you don’t name an executor in your will, the probate court will appoint one on your behalf. Testators often appoint an adult child or close friend to be an executor—someone familiar with their wishes.
- Settle estate taxes and personal finances. If your estate is large enough to qualify for state or federal estate taxes, you can address how you would like these tax matters to be handled. Additionally, if you have remaining debts or expenses, you can direct how those should be settled from your estate.
- Name a guardian for minor children. If you have dependents who are under 18 years of age, you can name a guardian who will be responsible for providing for your dependents if you pass away.
As Rachlin summarizes, “A will is essentially the vehicle that most folks are familiar with that disposes of assets when you die, sets the terms by which people will inherit, and says who will be in charge of that process.”
What Are the Requirements for a Will?
Generally speaking, to create a valid will, the testator must be an adult (18 years or older) and of sound mind. The will needs to be in writing in most states, and the testator must explicitly state the will contains their final wishes.
Additionally, the testator must sign and date the will in the presence of witnesses who also sign and date the document (the required number of witnesses varies by state).
Notarization is not required to make a valid will. However, suppose the testator has witnesses sign a self-proving affidavit attesting to the will’s validity. In that case, the affidavit will need to be notarized.
Despite these generally applicable requirements, it’s essential to realize that “wills, like everything in an estate plan, are highly state-specific,” says Rachlin.
“The wills that I prepare for District of Columbia residents will have terms specific to the District of Columbia that a Maryland will might not have.” says Rachlin.
Read this article to learn more about how to make simple wills and whether a DIY will is a good option for you.
“A will is just one of the documents that can convey assets after a person passes away, and it’s very important to understand that there are other documents that actually trump a will,” says Rachlin.
“For example, a beneficiary designation on a life insurance or retirement plan… will control that asset,” he says.
For example, if a will says, “I bequeath everything when I die to Person A,” but there’s a beneficiary designation on file that says Person B inherits a life insurance policy, then it doesn’t matter what the will says. “The life insurance policy is not governed by the will and it passes out of probate to Person B.”
“So, it’s very important to make sure that the will and beneficiary designations are working in concert and not at cross purposes,’ says Rachlin. “If beneficiary designations and a will are inconsistent, it can lead to some hairy situations.”
What if I Need to Make Changes to My Will?
If you are holding off on creating a will because you’re concerned about needing to make changes in the future, you don’t have to wait.
Making changes to a will is straightforward. You can add amendments called codicils that alter your original will to reflect your current wishes. The requirements for making a valid codicil are essentially the same as the requirements for making a valid will in the first place.
If you keep waiting to make a will so you won’t have to alter it in the future, that plan can backfire. It’s better to have a will in place. Then, if matters change, you can easily alter it with the help of an estate planning lawyer.
Are There Types of Wills to Avoid?
You generally want to avoid holographic wills. Holographic wills are handwritten and not attested by witnesses. Because they are unwitnessed, proving the validity of holographic wills can become very complicated and lead to serious disputes in probate court.
For example, it must be proved that the entire holographic will was written and signed in the testator’s handwriting and the testator was of sound mind when they created it. Furthermore, only about half of the states even recognize the validity of holographic wills. It’s much better to plan ahead and avoid the potential problems of a holographic will.
Similarly, you should avoid oral wills since they are not recognized in all states and can lead to serious disputes.
Questions for an Estate Planning Attorney
Most estate planning lawyers provide free consultations for potential clients. This means it won’t cost you anything to meet with a lawyer and get legal advice about your estate.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees and billing options?
- Is there a difference between a will and a living will?
- Can I create my own will?
- What are the different types of wills for married couples, and what is best for me?
- What other estate planning documents should I have in addition to a will?
- What are intestacy laws?
- What happens if I need to create a new will or amend the one I have?
Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship.
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