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What Is a Will?
6 second take: Are you prepared for the worst? Make sure you know what a will is and how it works.
A will is likely the most important legal document you’ll ever write. If you have money, property, or children, you need a will. You’re not going to live forever. A will is your post-demise plan of action that spells out directly and precisely how you want your assets to be distributed to your family or other heirs.
Most importantly, a will allows you to name the guardian for your minor children or dependents.
How Does a Will Work?
A will is a fundamental component of estate planning — or death planning, as some morbid types call it. A will is, in fact, the end product of the estate-planning process.
Sure, actively planning for one’s death sucks. But estate planning is about putting on your big-boy pants and facing up to your own mortality to come up with an easy-to-read blueprint to ensure your stuff goes exactly as you wish to your loved ones, favorite charities, or even the guy who pumped your gas for years.
To be clear, “estate” refers to money and property only, such as your house, bank accounts, stocks and bonds, and life insurance policies, as well as cars, jewelry, and artwork. Really anything — like your online account numbers and passwords. You’ll want your social-media accounts shuttered after you die. Or do you?
Make this work as painless as possible for the people tasked with legally settling your estate. A will can minimize tax hits and the time spent dealing with judges and lawyers, among other hassles.
Who Takes Charge of the Will After Death?
That person is called the executor. He or she will manage your estate and thus execute your stated instructions until completion. The executor can be your spouse, adult child, or another relative. It can even be your best friend.
A lot of people who have large estates name their accountants or attorneys as executors, but there’s no law preventing you from naming both your wife and attorney as joint executors of your will.
Legal experts recommend that will writers clearly spell out the executor’s required duties, such as giving that person the power to pay your bills, taxes, and debts.
When choosing your executor, think long and hard.
An executor needs to have financial smarts and a certain Zen-like personality that can handle reams of documents and tons of frustration.
Again, you want to minimize the hassles and bullshit for both the executor and your heirs, who are referred to in the will as beneficiaries. You want to avoid any delays in transferring your estate.
Why Wills Aren’t Just About Money
As noted earlier, you can use a will to name the legal guardian(s) of your children and dependents 17 years old or younger. A guardian can be your spouse, another family member, or a trusted friend. It’s a good idea to have a second-choice guardian as a backup.
You can name one primary guardian for the children and another guardian — or what they call a conservator — whose job is to manage their inheritances of property or money until they're given full control of those assets. This dual guardian-conservator system may seem a bit cruel, but it serves a purpose. For instance, perhaps your brother and his sweet wife make perfect guardians, but they’re so lousy with finances you can’t trust them to manage your money.
What Happens If You Die Without a Will?
A will is about control and saving your family time, money, and hassles as the executor carries out your final wishes to settle your estate. Without a valid will, your estate is at the mercy of the probate court system, which is the legal process of transferring the property of a deceased person to rightful heirs. The process varies from state, but a will ensures a quicker and cheaper settlement of your estate.
If you pass away without a will, you become what is called intestate, and your estate will be distributed according to your state’s “intestacy” laws. That means the probate court will attempt to pass your property to your closest relatives, starting with your spouse and children and going down the family line to distant relatives.
If you have no living relatives by blood or marriage, the state simply will take your property.
To get the estate-settlement process rolling, the probate court judge will appoint an administrator. This is typically an impersonal stranger who will settle your estate based on the strict dictates of the law and not your final wishes that you failed to codify in a will.
What Happens to the Kids?
This may be a bit extreme, but let’s say no one comes forward to request guardianship of your children. Sadly, the court will place the kids in state custody, and they’ll go into the foster-care system. See why a will is so crucial for parents and their kids?
Also, this is a good time to remind readers about picking the proper guardian. If you choose a guardian who’s a citizen of and lives in another country, it's possible the probate court in your home state could refuse to appoint this person as their guardian. Then the kids would become wards of the state until the sorry mess is sorted out, which could take months.
Ways to Avoid Probate Court
For many executors, dealing with probate is akin to root canal surgery. Every penny is documented, and every document verified. Probate is public, so your neighbor will learn that you were never a billionaire. The whole idea is to make the entire estate-settlement process as quick and painless as possible.
You also have to be mindful of cost. Going through probate involves costs and fees that could suck up 10 percent of your assets. That said, you don’t have to list all your assets in your will. Retirement plans like 401(k)s or IRAs, taxable brokerage accounts, and insurance-policy payouts enable direct transfer of monies without involving a will as long as you name beneficiaries of those assets.
Not having these assets subject to probate may save money on court and attorney fees. That said, real estate and personal property don't allow for the naming of beneficiaries outside a will.
However, there’s a way to avoid probate completely. Many wealthy Americans don’t use wills to transfer their estates. Instead, they use trusts.
But you don't have to be rich — anyone can start a trust.
There are a few types from which to choose, and most are designed to minimize taxes on the estate (rich people really hate paying taxes). A trust basically allows a third party, or trustee, to hold your money on behalf of your beneficiaries until they reach a certain age.
How to Draft a Will
A will is easy to prepare. You don’t need a lawyer, although it is advisable to work with an estate-planning attorney if you have a complex estate or marital situation. If you're married, experts say both spouses should have separate wills (both of which should be nearly identical). Problems could pop up if your spouse dies before you — like that truck your late husband bought and kept at his buddy’s house but never added to your joint will. Separate wills also come in handy if your wife was previously married or has kids who live with her ex in Mexico.
How to Validate a Will
Once your will is drafted and it’s time to sign, you’ll need to get someone to act as a witness. Anyone can do it, and most states require two or more witnesses. Not all states require that you have a will notarized, though.
Make sure you have signed copies of the original and keep them with your attorney or a trusted friend. Store the original in a safe at your house — not in a bank safe deposit box. Then update your will to reflect any major life changes.
Also keep in mind that your will can be contested in probate — typically by an ex-spouse or estranged adult child. All the more reason to write your will clearly and precisely. Avoid any hint of ambiguity.
Final Thoughts: Your Will Is Your Will
Creating a valid will is a simple process. Planning a will is not. It’s an emotional process. Who the hell wants to think about dying and which sister or brother will raise the kids? Or who will get your porn collection or doomsday bunker in Idaho? But that’s life (or adulting for you younger readers). Get it all down on paper, validate it, and give yourself a little piece of mind, especially if you have kids.