Less than half of Americans have a will that details how they would like their money and estate handled after their death, giving new meaning to the idiom “against their will.”
You don’t need wealth to benefit from a will. Wills make it faster and easier for your beneficiaries to receive their inheritance and for sticky issues, like care of minor children, to be resolved quickly.
A will is an important legal document that expresses your wishes for managing and distributing your estate after your death, plus instructions for the care of any dependents. An “estate” sounds fancy, but it simply refers to the collection of property, assets, and possessions that belong to you at the time of death, as well as any debts. This could include bank, retirement and investment accounts, real estate, jewelry, vehicles, and even business or corporations owned by you.
There are four main types of wills: simple wills, joint wills, living wills, and testamentary trusts. Simple wills are what you likely imagine when you think of a will—a document that names the executor or trustee responsible for managing your estate, outlines beneficiaries (also called heirs), and designates a guardian for dependents, if you have them. A simple will works well for many people and is a good place to start.
A joint will is basically two identical wills used by couples who want to name each other as their sole beneficiary.
A testamentary trust places your assets in a trust that your beneficiaries can access after you die. This is most common for people with dependents who want to place specific conditions on when and how assets are received. The trustee is responsible for managing and distributing the trust, whether it’s a lump sum when a child turns 18, or monthly or yearly distributions starting at age 21.
Living wills address what happens to you in the time leading to your death, not what happens to your assets or dependents after you die. A living will outlines your medical preferences if you’re incapacitated and unable to make decisions yourself, and designates a healthcare proxy or power of attorney to make decisions for you. This type of will may also specify the types of medical treatment you do or do not want to undergo and can include a do not resuscitate (DNR) order. Most people create a living will in addition to another will that outlines the care of property after death.
There are other, less common types of wills, such as oral wills (also called nuncupative wills), or holographic wills. But depending on state laws, these types of wills may not hold up in court.
If you die with a will in place, there is a process the will needs to go through before it is executed. This process is called probate, and probate court is responsible for handling wills, trusts, estates, and the like. After your will is located, it is filed by the executor or a beneficiary with the probate court in the county where you died or last resided. If you worked with an attorney to create your will, it may already be filed with probate court for safekeeping.
When a will is filed, it includes a request to approve the will and put it into effect. Probate court makes sure the will is properly signed and witnessed, according to state laws, and legally notifies beneficiaries to allow them to contest the will. The court also creates an inventory of the deceased’s estate, so that all assets and debts are valued in the estate. If you owe debts when you die, creditors are notified so they can file claims against the estate. Any debts, bills, and taxes are paid before the remaining assets are distributed according to the will.
The more valuable an estate, the longer probate can take. Also, estates with outstanding bills and debts can also require a lengthier probate. Usually, a will is probated and assets distributed within 8-12 months from the time it is filed in court.
If you die without a will, this is considered dying intestate. Lacking official direction from you, it’s up to the probate court to decide who receives your assets. These decisions are based on the state’s established intestate process, which outlines what percentage a spouse and/or children receive from a deceased’s estate. In most states, an estate transfers to your spouse, or if you’re single, to any children or your parents. If you’ve been married more than once or have children from different relationships, dividing property is more complicated. This is why it’s best to make your wishes known in advance.
If you have joint accounts or accounts with a designated beneficiary, those can transfer without going through probate. If you own joint real estate with a spouse, it automatically transfers to them. In fact, if you own joint property, you can only leave it to the joint owner. If you’ve named a beneficiary for your retirement accounts, that also transfers directly to them without probate.
If the accounts are in your name only, they still need to go through probate before they are transferred to a spouse or children. If you’re not married and die without a will, the court decides which relatives inherit your property. In the absence of relatives, your estate is escheated, or turned over to the state where you live.
Carefully consider who you want to name as a beneficiary in your will. Keep in mind that you can’t disinherit a spouse you are legally married to unless you have a pre- or post-nuptial agreement. Some state laws ensure your partner gets their fair share of property, and these can overrule your wishes to the contrary.
If you’re leaving someone out of your will—say one of your children—it’s best to specifically include that in the will, rather than simply not mentioning them. Depending on the state, children who aren’t named may still be entitled to their share of the inheritance. In Louisiana, disinheriting your children is illegal.
Specify in the will if your heir’s heirs inherit their share of your estate, should your heir die before you. For instance, if your son dies before you do, do you want his wife to inherit?
Keep in mind that you cannot tie inheritance to conditions that go against public policy, like limiting inheritance if someone marries a person of a certain age, religion or race, gets divorced, or joins or leaves a specific religion.
There are two ways to change a will: creating a new will, or amending the current will with a codicil. A codicil is a legal supplement to a will. A codicil is best for minor adjustments to your will. If you’re making sweeping changes, revoking the old will and creating a new one is the right approach.
A will can be as straightforward or complicated as you like. There are kits and templates available online if you want to try creating a will on your own. Even if you create a will yourself, consider scheduling an appointment with a lawyer to double check that it will make it through probate. Or you can hire a lawyer to guide you through the entire process. Remember, even a simple will is better than no will.
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