How Does a Will Work?

After we pass, much of the burden to divvy up assets and carry out our wishes is left on our family members. This is why having a will is so important. It can help establish, clearly and directly, what you want to happen to your property.

According to a 2021 Gallup poll, about 46% of Americans have a will, with the highest percentage being above the age of 65. This may be because the process is never something we look forward to. However, they’re extremely important to have, as they’ll help take the pressure off our family’s shoulders.

In this article, we’ll explain what wills are and why they’re so important to have. You’ll also learn what one includes, as well as what can happen if you don’t have one. Finally, we’ll let you know how to get started, so you can check this key document off your estate planning to-do list.

What Is a Will?

A will (sometimes known as a testament) is a legal document that sets forth your, the testator’s, wishes after death. It allows you to:

• Name an executor.
• Distribute your property (through your estate) to beneficiaries.
• Assign guardians for minor children, if any.

Typically, you’ll work with an attorney to draft one. However, this isn’t a requirement.

As mentioned, wills have the power to govern property that’s part of your estate. When we think of this, savings accounts full of cash or homes may come to mind. But really, it includes anything of value to you, including photographs, kitchenware, or other trinkets.

Keep in mind that there are some exceptions to the types of property a will can distribute. Life insurance policies and retirement accounts where a beneficiary is specifically named won’t count. Joint assets (such as real estate you and a business partner bought) are also not included.

The executor of your estate is the person who will carry out your wishes and distribute assets on your behalf. This should be a trustworthy individual, such as a child, sibling, or close friend. Typically, a probate court supervises them to ensure the your assets smoothly transition to any beneficiaries.

Why They’re Important

It’s never easy to plan for the end; however, having a will is one of the most important things you can do. And it’s not just a tool for the wealthy, anyone can and should have one. Here are key reasons why you should consider drafting one:

• It gives you the power to distribute your assets where and to whom you want, without being subject to state law.
• You’ll be able to name guardians for minor children, if any.
• With one, you get to choose who runs your estate (the executor) according to your wishes.
• It takes the pressure off of your friends and family, because they clearly state your wishes, rather than leaving things up to other people’s interpretations.
• It can help reduce estate taxes. For instance, making charitable donations and giving gifts is a way to lessen your taxes.

What a Will Includes

Several key components make up a will. All of this combines to convey your wishes for your estate, as well as name who’ll carry it out. Here’s an in-depth look at the most common aspects you should include:

Personal Information

You’ll need to add some information about yourself in your will. This typically includes your name, date of birth, and address. You should also include the names of your immediate family, if relevant.

Testamentary Intent

There should be language in the document that indicates that it is, in fact, a will. Typically, you’ll want to specifically state that it is your last will and testament. Without including this, people may try to contest your estate or claim that the document had another purpose.

Naming an Executor

Appointing an executor to carry out your wishes is a crucial decision. If you choose the right person, all should go smoothly as they settle your estate. However, selecting the wrong individual can cause strife among family members that can last for months or even years, as well as result in the mishandling of your property.

An executor should be someone close to you that you trust. They should also be an adult and have the mental capacity to settle your estate. This could be a child (if they’re over 18 years old), sibling, or friend.

Naming Beneficiaries

Next, your will should name beneficiaries. In other words, this is where you’ll get to decide who gets what and when. These can be individuals, such as relatives or close friends, or they can be businesses and charities.

Specific Instructions for Property Distribution

This is where you get to spell out exactly what you want to give and to who. For example, you might say something like, “My vacation home in Hawaii goes to my brother, John” and, “My boat goes to my cousin, Sarah.” You can also choose to leave everything to one person. Either way, this is where you’ll do it.

Naming Guardians

If you have any minor children or adults (such as a disabled or elderly person) in your custody at the time of your death, your will can assign new guardians for them. Like an executor, this should be someone you trust can adequately take care of these people once you’re gone.

Signatures

Finally, you’ll need to sign your will with a witness present. However, if your document is “holographic” or handwritten, you won’t need to include any witness signatures.

What Happens When You Don’t Have One

If you don’t have a will, the state government gets to decide the distribution of your property. In legal terms, this is when you “die intestate.” Unfortunately, this means your assets may not go to the people you want them to. And any other wishes you had but didn’t write down may not happen.

Without a named executor to settle your estate, a state judge assigns an administrator to handle the process. Normally, this person abides by probate laws in your state. And, as mentioned, this may mean your property won’t go where you want.

Ultimately, you should create a will if you can. Doing so ensures everything goes as you want them to, as well as minimize stress on your loved ones.

What Is Probate?

Probate is the legal process that settles a person’s estate. It can happen with or without a will in place.

Typically, when someone dies, a probate court may assess their assets and decide how it wants to distribute them. If there’s a will that has instructions for one’s property, that’s typically where it’ll go. However, without one, the court gets to decide where and to whom the property goes.

How to Get Started

Contrary to what you might think, writing a will is a relatively simple process. Often, people hire an attorney to help them write one. Alternatively, you could do it yourself with a DIY kit or estate planning software. Even if you write one yourself, you’ll benefit from having an attorney look it over for you. They can help identify any issues or reasons why it could be invalid, such as there being a lack of witnesses.

Of course, the more money you have, the more there is to deal with. If you’re a high-net-worth individual, you may want to seek out a financial advisor, as well as an attorney.  To find a qualified finance professional, you can use a free matching quiz, which connects you with up to three experts near you.

Frequently Asked Questions

Should both spouses have a will?

It’s a common recommendation that each spouse have one. This is because, as unfortunate as it is to say, you’ll likely pass away at different times. So, you’ll need your own document to distribute your assets at that time. Also, people often challenge joint wills, and some states don’t always acknowledge them as legitimate.

Do I need an attorney to write a will?

No, you don’t need an attorney. But working with one gives you a better chance of having a valid will. This is because they’ll be able to spot any potential issues that may cause someone to challenge your document in court.

What is a living will?

A living will is a document that outlines your wishes for medical treatment if you are unable to do so for yourself. Typically, they include healthcare directives and grant someone power of attorney (or the ability to make decisions on your behalf).

What is the difference between a will and a trust?

A will is a document that names an executor, as well as distributes your assets according to your wishes. On the other hand, a trust is an agreement where a person grants their assets to a trustee for the eventual transition to a beneficiary, typically upon a person’s death.

Typically, trusts don’t count as assets that you can use a will to distribute. This is because you’ll have already named beneficiaries who receive the money in the trust.

What is the executor of a will?

An executor is someone you appoint to carry out your wishes and settle your estate. This should be an adult who is mentally competent enough to handle the task at hand. Typically, people choose someone they trust, such as a family member or close friend.