Caring.com’s 2021 Wills and Estate Planning Study found that while the COVID-19 pandemic has increased people’s desire to get a will (35% saw a greater need), the overall percentage of people with a will hasn’t changed – 2 out of 3 still don’t have crucial estate planning documents.1 Discussions about end of life and estate planning may not make for pleasant dinner conversation, but having a will in place can ease the burden on your loved ones at a difficult time and help you ensure your assets are handled according to your wishes after you pass away.
Why should I have a will?
Creating a will is essential for just about everyone. Fortunately, making a legally binding Last Will and Testament is not nearly as complicated as most people believe it to be.
Moreover, having a will can help spare your loved ones from a lengthy ordeal with state probate courts, who will then decide how to disperse your assets according to state rules - instead of according to your final wishes. Here are a few equally important reasons to make out a will ASAP.
To elect someone to handle your affairsYou'll need to assign one honest and trustworthy individual to be the executor of your estate. (Note: It does not have to be a member of your family.) The executor or executrix is responsible for inventorying your assets and property, making sure any lingering debts and taxes (including estate taxes) are paid, properly dispersing your assets, and informing your banks and creditors that you are deceased, as well as guiding your estate through probate court. If you do not choose an executor, the state will appoint one for you, and anyone can petition the court to hold this position.
To ensure your assets are left to the people you choose
An “oral will” (final requests spoken aloud in front of witnesses) and a “holographic will” (a document drawn up by you without the presence of witnesses) may not have much legal bearing in court. A formally prepared will signed by two, or sometimes three witnesses, can be the best way to ensure that your money and assets are left to the heirs you intend to leave them to. Intestacy laws vary from state by state, but in the event that there is no will, a person's assets are usually awarded to immediate family first (spouse, children, and parents). If there is no remaining immediate family, your assets are often dispersed between your siblings and their children, or your grandparents, or your uncles and aunts and their children. However, this will all depend on the intestacy laws of your state.
It's important to mention that some states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin), consider property that is owned by a married couple as “community property,” meaning that any assets purchased during the marriage are owned equally by both husband and wife (this also includes any debts). If one of you dies without a will specifying who gets what, the intestacy laws of your state will decide for you.
To protect your children if they are still minorsParents of young children should be especially proactive about making a will, because a will can establish who your children's guardians would be in the event that you (or you and your spouse) die prematurely. If there is no will in place, that decision is also left to the state. If you have a trust, a business, or a large amount of assets you would like to divide up between your children now or when they reach a certain age, your will should make your intentions clear.
To make sure your last wishes are honored
It's important and advisable to update your will at different stages in life and as you encounter critical milestones such as marriage, divorce, birth of a child, adoption, death of a family member or simply when circumstances change.
If your marital status changes, or you decide you'd like to update the names of your beneficiaries, your will can be formally amended at any time. You can simply draft a new will or attach a Codicil to your existing will. Do note that some states also require wills and Codicils to be notarized, so be sure to consult the intestacy laws of your specific state. In either case, having your will notarized can only enhance its legitimacy.
To disinherit someone from your estate
Disinheriting someone from your last will and testament is a serious decision that can have serious consequences that may reverberate through a family for generations to come. Therefore, it's not a decision to be taken lightly or made in the heat of the moment. Simply omitting someone from your will who would usually stand to benefit (such as a direct heir) is not a legally viable way to go about disinheriting someone. There needs to be explicit language in your will stating that you have intentionally disinherited the person from your will.
If you have had to make the hard decision to officially disinherit someone in your will (for whatever that reason may be), don't forget to update the names of your beneficiaries on your life insurance policies and retirement accounts accordingly. It's important to note that you cannot completely disinherit your current spouse, or any children who are minors. (The specifics of spousal inheritance vary by state. A prenuptial agreement may have some bearing on what they do or do not inherit in some states.)
Do I need a simple or a complex will?
According to Nolo.com, a simple will may be all you need if you're under the age of 50, in good health, and have no reason to be concerned about leaving estate taxes for your loved ones when you die. However, they note that you may need more than a basic will if one or more of the following applies to your situation:
- You want a degree of certainty to control what happens to your property after you die
- You have a special needs child or other individual that you wish to address in your estate plan
- You have children from a prior marriage and would like to keep some level of peace between them and your current spouse
- You feel that someone might contest your will. For example, claiming that you were not mentally competent at the time the will was written, or that the will was created under duress or by fraudulent means
A simple will
A simple will is typically something you might write yourself. With this kind of do-it-yourself will, you can name your beneficiaries, determine how your property is to be divided among the surviving heirs, and designate a guardian for your minor children.
With many sites offering do-it-yourself wills for under $100, the online process may be an easy way for creating a will at a bargain price. And they probably are if you need only a simple will - meaning you don't have a lot of assets or investments that you need to consider. But real life isn't always so simple. Special assets such as a family business or property in multiple states, stepchildren, and other situations don't always fit into an online fill-in-the-blank form. Depending on your situation, you'll also need to familiarize yourself regarding estate laws in your jurisdiction.
A complex will
Depending on your situation, you may want to consider having a complex will prepared by an estate planning attorney. You may be better suited for a complex will if:
- Your assets are valuable enough that estate taxes will apply
- You need to establish a special needs trust for a child with a disability or an aging parent
- You want to set up a trust to ensure that your children receive a certain sum of money when they turn a particular age
- You expect to accumulate additional assets over time
- You have a previous spouse who may complicate your estate
- You want to create a joint will with your spouse
- You own a business
If you are in a situation where you have considerable assets, an extended family, or if you wish to set up specific estate instruments to help avoid probate or estate taxes, you may need to consider working with a qualified estate planning attorney who could help you with complex will preparation.
Different types of wills
It may be helpful to be aware of the different kinds of wills.
A simple or statutory will
Considered a one-size-fits-all will, a simple or statutory will is a document that can qualify as a do-it-yourself will by using an online state-specific template that meets your state's legal requirements. These types of wills work best for those who have small and less complicated estates.
A holographic will
Remember those old movies where people would scribble out their last will and testament on a piece of paper, sign it, and that was it? The holographic will works in much the same way by allowing you to handwrite, sign and date your will yourself - no witnesses required. However, what you need to know is that holographic wills can be subject to a great deal of vulnerability in probate court, not to mention that only around half of the states will actually recognize a holographic will as valid.
The oral or nuncupative will
Also known as “deathbed wills” oral or nuncupative wills are spoken, not written. You simply express how you want your property distributed after you die to another person. Much like the holographic will, not all states recognize oral wills and those that do, impose strict requirements.
When you set up a living trust, you can use this type of will to name the trust as your primary beneficiary. When you die, any assets that were not already named in your trust will then “pour” into it by virtue of the will and be distributed according to its terms.
Conditional or contingent will
A conditional or contingent will specifies that its provisions are only valid if a certain event does or doesn't happen. For example, a beneficiary may not be entitled to an inheritance until they reach a certain age, graduate college, or any other condition of your choosing. If the condition in the will is not met and the person does not have another will, the estate will be distributed as if no will existed.
A living will is a legal document that informs doctors and medical caregivers what medical care you want if you are unable to communicate due to an accident, severe illness, dementia or coma. It also guides your family to make decisions about sustaining your quality of life that you would agree with. For example, it can specify if you want pain medication, to die at home or in a hospital, and when to cease heroic efforts to keep you alive.
What are the benefits of a living will?
You want your wishes to be recorded in writing, not left to others' discretion. Your loved ones will be under duress and may not remember - or agree with - what you wish to take place. A living will spares your family the heartache of guessing what to do and protects you from receiving more medical care than you want, such as ventilator support or IV feeding for long periods of time.
What is the difference between a will and a living will?
A living will provides guidance on your medical wishes while you are still alive, but either mentally or physically incapacitated. A will is designed to distribute your assets according to your wishes upon your death. Both documents are an important part of end-of-life planning.
No matter what type of will you choose, it is always a good idea to discuss your plans with an an estate planning attorney, to be sure that your document will do what you want it to, and it is valid in your state.
If you're looking for legal advice regarding your will, an attorney who specializes in estate laws in your state of residence should be able to answer any questions you may have. You can also find more information about wills, preparing for the unexpected, and estate planning in the Protective Learning Center.