A last will and testament (will) is the legal document that forms the basis for a typical estate plan. In this article, we will define what a will is and what it can and cannot accomplish in an estate plan. Next, we will walk through an overview of the process to prepare a will as well as key considerations. Lastly, we will explore the idea of drafting a will without involving an attorney and the potential pitfalls of doing so.
What is a Will?
A will is a legal document that sets forth your wishes regarding the distribution of your assets and appoints guardians for any minor children. If you die without a will you die intestate, meaning you have no estate plan to determine the distribution of your estate. In this situation, the court will determine who inherits your estate and your wishes will most likely not be carried out. Further, without any estate plan your heirs will end up spending additional time and money to settle your affairs.
A will is a great tool for simple estate plans. They allow you to be clear about who gets your assets as well as in what amounts. They also allow you to keep your assets out of the hands of people you do not want to have them, such as an estranged relative. Further, your beneficiaries will have a faster and easier time getting access to the assets with a will than without one. Most importantly, you can identify who should care for minor children. Without a will, the court will make the determination. A will alone may not be able to accomplish all your goals, especially if one of them is to avoid probate.
A common misconception is that a will avoids probate. A will actually guarantees probate because a will must be probated in court. A good way to think of a will is as an instruction sheet to the probate judge, telling them how to distribute the assets. Wills also are not private. Since they must go to probate court the contents of a will become public record.
Finally, with a will you cannot have any periodic distribution. What that means is that you cannot dole out the inheritance to your beneficiaries over a timeframe. Instead, your beneficiaries, if they are over the age of 18, get the inheritance outright in one lump sum.
How to Prepare a Will
In preparing a will there are two key aspects to consider. The first and more obvious being who do you want to inherit your estate and in what proportions? Do you want it to go to your children equally, or more to one child than another? Or is there a charity or organization you would like your estate to go to?
The next and less obvious aspect to be considered is who you choose to have serve as your personal representative. A personal representative’s role is to administer the estate. Often these duties consist of arranging funeral services, notifying beneficiaries, determining the value of the estate, as well as distributing the estate. When deciding who to have serve as your personal representative it is best to choose someone who is organized and financially savvy.
Should You Write a Will Without a Lawyer?
Oftentimes people believe they can draft their own wills with the help of a will template or some online software. This is a poor idea for many reasons.
Often this is done to save money. The risk of this undertaking is incredible and not worth saving a few dollars. Each state has its own laws for how wills must be signed in order to validate and whether it is self-proving or not. When drafting a will on your own, many people do not follow their state’s laws regarding witnesses to the will’s signing or do not make the will self-proving.
Another common problem with self-drafted wills is they are ambiguous, and often vague to important aspects of the will such as who the beneficiaries are. The will says “children.” But do you mean step-children as well? What about adopted children? What about a child that was born after the will was drafted? With the help of an experienced estate planning attorney all the potential pitfalls can be avoided.
How Can TuckerAllen Help You in Creating a Will?
At TuckerAllen, we can help create a last will and testament for our clients. Our experience allows us to explain the differences in estate plans and help clients make decisions about which type of estate plan would best achieve their goals as well as explain to clients how to utilize a will-based estate plan.
Get in touch with us if you need help creating a will.