Writing a Will: Understanding the Basics

It’s probably not a surprise to hear that most adults put off, or avoid altogether, estate planning. In fact, according to an AARP survey, two out of five Americans over the age of 45 don’t have a will. 

But it’s one of the most important things you can do for yourself, and for your loved ones. Peace of mind is extremely valuable. 

It’s important to know the basics of writing a will. When things feel intimidating, the best thing you can do is start slow! Start with the basics, and then seek further advice from a professional in your state. 

What is a Will?

To put it simply, a will is a legal document that declares who will manage your estate after you pass. It can consist of big, expensive things like a vacation home you own or even smaller items like photos or heirlooms. 

Legally speaking, you are the testator, and the person you choose to manage your estate after you’ve passed is called the executor or personal representative. 

A will can also serve the purpose of naming a guardian for any minor children or dependents in the event of an untimely death. You can also specify items to go to certain people other than your executor. For instance, if you want your bedroom suite to go to your nephew or you want your china collection to go to your sister.

There are some things that aren’t typically covered in a will, however—like some types of properties. Usually, you’d list beneficiaries when you took out policies or opened accounts for those properties. When you’re drafting your will, double-check these and make sure you’re keeping your beneficiaries up to date. 

What Happens if I Pass On without a Will?

Those two out of five Americans over 45 who don’t have a will we mentioned earlier? What will take place if something happens? They’ll become what’s called intestate—which means their estate will be settled according to their state’s laws. 

A judge will appoint an administrator to handle this process. This can also happen if a will is invalid, or doesn’t meet certain standards.These requirements vary from state to state as well. 

Something to note: An administrator can be a stranger, and could therefore make decisions you might not agree with. And an administrator is obligated to distribute your estate according to the law, regardless of what your intentions or wishes were.

Do I Need an Attorney to Prepare My Will?

You don’t have to hire a lawyer but, with so many specific requirements to meet, it’s highly encouraged—so your will isn’t deemed invalid after passing. 

Even if you have a valid will, not all wills are created equal. You need someone who’s experienced and has seen both sides of the coin, and someone who knows all the details you need to consider. It’s not easy thinking about this type of planning; having someone compassionate and knowledgeable will take the stress out of the process. 

Do Spouses Share a Will, or Do They Have Separate Wills?

Most estate planners don’t recommend joint wills, and some states don’t recognize them at all. One of the biggest reasons why is because it’s very unlikely that spouses will die at the same time, and there is typically property involved that’s not jointly held. 
Separate wills allow for each spouse to address issues such as ex-spouses and children from previous relationships. This also goes for property that was obtained during a previous marriage or by inheritance. Make sure you’re very clear about who gets what because probate laws generally favor the current spouse. 

So, How Do I Choose an Executor? 

It’s pretty typical to leave your spouse, an adult child, or another trusted friend or relative as your executor. 
If your affairs aren’t particularly straightforward, you might consider naming a trusted attorney or someone with financial expertise as your executor. You can also name joint executors if you want both. 
The most important thing you can do for your executor or executors, and for yourself, is to empower them to pay your bills, deal with debt collectors, and sell and distribute property. The specific wording of your will should allow for this. It should also give them some flexibility to handle things not specifically stated in your will. 

My Will is Drafted—Where Do I Keep It?

The short answer is that your original will should be kept safe, but also be kept accessible—since a probate court can’t process your estate without it. So, if you put it in a bank safe deposit box that only you have access to, your family will have a harder time accessing it. A waterproof and fireproof safe or lockbox in your house is a good option. 

Your attorney (or someone you trust) should also have signed copies just in case something happens to the original. Signed copies are used to establish your intentions, but an original will is still necessary. There’s no guarantee that your estate will be settled according to your wishes without one. 

When Do I Need to Update My Will?

We have a whole blog on when and why you should update your will. Click here to give it a read! Need more advice or guidance when it comes to planning your estate? Kristin Waters Sullivan has been helping the people of Birmingham secure their legacies for years. Whether you’re just starting out or you’re finally enjoying retirement, she’ll take the stress out of estate planning. Click here to get in touch.