How to Write a Will

• by Susan MacDowell

Introduction

• According to a survey by Lawyers.com in 2004, 58% of Americans hadn't written a will. If you're in the same boat, you're unnecessarily creating problems for your beneficiaries by not making your last wishes clear. No matter your age or financial situation, take care of your loved ones by taking the time to write a will .

The Three Most Important Things to Remember About Wills

• Everyone needs one.
• If you don't have one, the state will decide where your assets go.
• Make sure your will meets your state's requirements.

• NOTE: You may have heard the term "living will". A living will is not a will that deals with your property, or with your wishes after death. A living will refers to a document that sets out your medical wishes should you be unable to speak for yourself, in cases of coma or prolonged life-support. It is usually accompanied by a health care proxy, which appoints someone to make decisions about your care.

The Basics

Do I need a Lawyer?

• Before you get started writing your will, it's important to determine if doing it yourself is the right option for you.

1. If your estate is large, or your wishes for how to disperse it are complicated, you should hire an attorney to help you draft your will.
2. If you're unsure whether or not you need help making your will, you may want to consult an estate planner or an attorney for advice.
3. Even with a simple estate, there are many things to consider. Using an attorney can help make sure you consider all eventualities.
   • An example of such an issue is: what happens if a beneficiary dies before you? Do you want the assets re-allocated among the existing beneficiaries, or do that person's heirs inherit?

Research Your State's Requirements

• If you decide you'd like to write your will yourself, it's particularly important to make sure you understand your state's individual requirements.

1. For example, in Georgia you can execute a valid will at age 14; in California you need to be 18.
2. You can research your state's requirements here and here.
   • Since laws change frequently, you may also want to contact your Secretary of State for current information.

Get Organized

Will Definitions

• Beneficiaries: People you want to inherit your assets.
• Estate: Assets you leave behind, such as real estate, cars, bank accounts, cash, furniture, jewelry, art, heirlooms, pension plans, and life insurance policies.
• Probate: Legal process used to enforce a will and distribute the assets.
• Testator: Person making the will

Basic Steps

• Regardless of whether you've decided to prepare your will yourself, or whether you're going to work with an attorney, there are some initial steps you should take:

1. Inventory your assets. You can download a checklist to assist in this process here .
   1. Make a list of everything you have to dispose of. This would include all bank accounts, cars, heirlooms, stocks, savings, and other items that you plan to pass down.
   2. Note account numbers, addresses, locations, and any other identifying information.
   3. Estimate a value if appropriate.
   4. Include key sentimental items, as well, even though they may not have high monetary value. Would you like to make sure that your younger sister gets your grandmother's mixing bowl? Should your college roommate get your Rolling Stones LP collection? Write it down.
2. Choose your executor. This is the person who will manage your estate when you're gone. He or she is responsible for making sure your property is dispersed and your wishes are carried out.
   • Be sure to discuss your appointment with the executor. Make sure he or she is ready for the responsibility.
   • It's a good idea to specify an alternate executor in your will, in case the first is unable to serve when the time comes.
3. If you have children, consider what they will inherit and who will become their guardian.
   • It's important to be sure that the person you appoint as guardian of your children agrees to being assigned that role. Talk to him or her before you draft your will.
4. If you are leaving assets to your minor children, you must appoint a trustee to manage the estate left to them, until they are 18 or the age you specify that they are to receive their inheritance.
   • The trustee and guardian can be the same person, but it is customary to separate the responsibilities .

Prepare a Rough Draft

• Regardless of whether you're attempting it yourself, or using an attorney, you'll want to write down the following information:

1. Your name and address.
2. The name of your executor, as well as an alternate.
3. Names and addresses of your beneficiaries.
4. An asset distribution plan, stating who gets what.
5. Instructions about how you would like your executor to handle your estate.
6. Names and addresses of guardian(s) for your underage children.
7. A Residuary Clause, which states how items or assets not specifically mentioned in your will should be divided.

• Your will should NOT include:

1. Instructions for how you would like your funeral conducted.
2. Instructions for donating your organs.

• as it may not been read immediately upon your death. These are things you should discuss with your loved ones in advance. You can leave a letter with your wishes, making sure that those who would be making the decision know where it is.

Do It Yourself Resources

• If you're tackling your will yourself, there are a number of resources than can assist you in the process. Even if you use one or more of these resources, you can still have an attorney review the self-prepared will before executing it.

Forms and Online Services

• Online forms and services can help you through the will-writing process:

1. LegacyWriter.com—testators fill out an online questionnaire, then pay around $20.
2. For $19.95, BuildaWill.com provides the same service.
3. LegalZoom.com has a questionnaire and will then have a legal expert review your answers, starting at $69.

Software

• There are also software programs that can assist you in writing a will:

1. Quicken WillMaker Plus is $39.99
2. Suze Orman's Will & Trust Kit costs around $18.00.

Books

• Books can provide a more in depth look at the topic. A few to check out are:

1. NOLO's Simple Will Book by Denis Clifford
2. The Complete Idiot's Guide to Wills and Estates by Stephen Maple

Finding a Lawyer

• If you've decided to use an attorney to write or review your will, you'll need to find one. Prices will vary depending on your local and personal situation, but a simple will usually cost less than $500. You can find a lawyer in a number of ways:

1. Personal referrals from friends and family who've successfully had a lawyer prepare their will.
2. Professional referrals from other attorneys, investment advisers, and accountants, who have worked with estate planning attorneys.
3. Your State Bar Association will be able to give you a list of attorneys who specialize in writing wills.

Some Legal Niceties

• Once you've written your will, you need to execute it legally. The legal requirements vary from state to state, but, at a minimum, making most wills valid requires:

1. A statement that you are of "sound mind," which means you are in a healthy mental state at the time your will is created and that you are aware of the terms stated in your will.
2. Your signature.
3. The current date.
4. Signatures of two adult witnesses, who are not mentioned in the will, present at the time of your signing.

• Here are some other things to keep in mind about the legality of your will:

1. While you don't have to file your will in court, once you die your heirs will have to file an original will to start the process of probate.
2. If you have several versions of your will, the last one created is considered most valid.

Changes and Updates

• You can change or update your will as many times as you want. An amendment to your will is known as a codicil.

1. In fact, as circumstances in your life change—when you get married, have a baby, or purchase a home, for example—you will probably want to amend your will.
2. It's a good idea to review your will annually, to make sure that life changes haven't affected any of your decisions.
3. You create a codicil the same way as a will—dated, signed and witnessed—and attached to your original will.
4. You can write a codicil to update your assets, beneficiaries, and even to revoke prior instructions, such as who is appointed executor.

Final Thoughts

• Other important things to know when creating a will:

1. Be sure to store your will in a safe place, like a safe or safety deposit box.
   • If you use an attorney, they will usually keep an original copy of your will on file.
2. Have two copies of your will—and keep them in different locations.
3. Make sure your executor has a copy, and access to the location of the original.
4. Be sure to sign it correctly, with two witnesses and the current date. Make sure your signature is easily recognizable as yours—you don't want your signature contested after you die.
   • Although having your will notarized is not required in most states, it's a good way to reduce the likelihood of your signature being challenged.

Conclusion

• Even though creating a will is something most of us would prefer to not think about, actually sitting down to write one is a fairly painless process. Plus, knowing that your loved ones will be provided for should anything happen to you makes it all the more worthwhile.

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Resources for How to Write a Will

• Apex Publishers: Elements of a Will
• The Ayn Rand Institute: Estate Planning
• CCH Financial Planning Toolkit: Capacity to Make a Will
• Do Your Own Will.com: Changing Your Will?
• Dummies.com: Probing Probate: What You Should Know
• eHow: How to Deal With Probate
• Estate Plan Center: Non-Probate Assets
• FindLaw: Changing Your Will: Codicils
• FindLaw: If You Don't Have a Will, the State Will Make One for You
• FindLaw: Signing Your Will: Witnessing and Notarization
• Google Books: J.K. Lasser's New Rules for Estate and Tax Planning
• Howstuffworks: Types of Wills
• Human Rights Campaign: Sample Last Will and Testament (17.33KB) 
• Inc.com: Making Your Will Legal
• Investor Education Fund: Can I Write My Own Will or Do I Need a Lawyer?
• Justia.com: How Do I Prepare a Valid Will?
• Kaboose.com: The Importance of Writing a Will  
• Kiplinger.com: Six Steps to a Good Will (September, 2007)  
• The Law Offices of Shelly B. West: Wills in Texas
• Lawyers.com: Many Americans Leave Loved Ones Vulnerable... (May 24, 2004)
• LegalHelpmate.com Last Will vs. Revocable Living Trust
• LegalZoom.com: State Requirements for a Last Will
• Living Trust Network: The Place for Information on Living Trusts and Estates Planning.
• MetLife.com: Making a Will: Elements of a Will
• The Motley Fool: Estate Planning: Wills or Trusts? (June 2, 2006)
• MSN Money: 8 Ways to Leave a Mess for Your Heirs (January 8, 2008)
• NOLO: Quicken® WillMaker Plus 2008
• NOLO: Leaving Property to Young Children
• US News & World Report: How to Write a Will Online (November 12, 2007)
• Presidio of Monterey: Guardian and Trustee in Your Will (10 KB)  
• Quiz Law: Trusts and Estates - Where can I find my state's probate code?
• Right on the Money: Writing a Will
• Robertson, Downe & Mullally: Personal Information Record (60 KB)  
• SmartMoney: Will You Owe Estate Taxes?
• USMC Lifelines: Last Will and Testament: Make Your Wishes Known May 4, 2007
• wikiHow: How to Write Your Own Last Will & Testament
• Yahoo! Finance: Preventing Squabbles Over a Will With No-Contest Clause

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