If you’re like most people, you aren’t eager to spend time thinking about what would happen if you became unable to direct your own medical care because of illness, an accident, or advanced age. However, if you don’t do at least a little bit of planning — writing down your wishes about the kinds of […]
Writing a Will – Your Options
When it comes to “adulting,” writing a will is arguably one of the more important things you can do—even if you don’t feel like you have significant assets. Yet only four in 10 U.S. adults actually have a will, according to a survey by Caring.com. The reasons for not making a will vary from “I haven’t gotten around to it” yet (47%) to “I don’t have enough assets to leave to anyone” (29%) to thinking it’s too expensive or not knowing how to do it (4% each).
Full disclosure: Setting up a will was on my to-do list as soon as I found out I was pregnant with my first child. But my husband and I didn’t actually complete the task until child No. 2 was about 6 months old. Now that it’s done, I realize making a will doesn’t have to be as hard—or expensive—as it may seem. Plus, the peace of mind that comes with checking off this task is, frankly, priceless. If you’ve been wondering how to prepare a will, here’s what you need to know.
How to make a will
These days, creating a will isn’t nearly as difficult as you think it is, whether you use a traditional lawyer or make one through an online app or a template. There are pros and cons to each option, and you’ll need to pay close attention to the instructions on how to write your own will according to the laws of your state. After all, a last will and testament that’s written but never signed—with witnesses and a notary present, usually—likely won’t hold up in a court of law.
Option 1: How to make a will without a lawyer
- Pros: Writing your own will is the cheapest way to go, but it will likely require a lot of time and research on your part. Start by researching the laws where you live, since every state has different requirements. Online resources like Nolo have come a long way in providing self-help legal resources for people interested in creating their own estate documents.
- Cons: The worst-case scenario would be that you don’t draft your will in accordance with state laws. Even if your overall will is fine, each section may require specific wording. So even if you go this route, it may be worth having a lawyer check your work. This will cost money but hopefully not as much as having a lawyer draft everything from scratch.
How to write your own will. If you’ve done your research on state laws and terminology, you’ll save a lot of money in the process, but there are things to keep in mind. “A legal will is the last legal document that we prepare for ourselves, and it is the last legal record of our wishes,” said Robert I. Aufseeser, attorney with Ansell Grimm & Aaron, PC. “A lot of thought should be given to how these documents are prepared.” To go the DIY route, you’ll need to do the following:
1. Stick to the script. John R. O’Brien, an attorney in Chicago, recommends including a declaration in the first paragraph that the person writing the will is of sound mind and intends for the document to be his or her “last will and testament” and, if applicable, that it revokes any previous wills they have written. Your will must also include your name and signature and the signatures of two witnesses who were present for the signing. “A self-proving affidavit [a form the will maker and witnesses sign under oath to say that they have signed and witnessed the last will] should also be included if you want to avoid unnecessary costs when the time comes to probate the will,” said Aufseeser.
2. Select an executor. A will must name an executor—the person or people responsible for stepping into your shoes to see that your final wishes are met. While it seems obvious, you’ll want to pick someone you trust. “It’s a job and a huge responsibility,” Aufseeser said. “An executor is responsible for handling your final affairs, including marshaling your assets, paying your bills, filing your taxes, communicating with all beneficiaries and, finally, distributing assets.” He recommends that whomever you pick is a good communicator, responsible and someone who can do the job while preserving family harmony at the most difficult of times. O’Brien also pointed out that many states have age, residency and other requirements for executors, so it’s important to know your local requirements.
3. Designate your beneficiaries. Your beneficiaries are the people or institutions you choose to leave your assets to after you pass. In addition to your will, it’s good practice to name beneficiaries on any financial products you own. “You can also name beneficiaries on life insurance policies, 401(k) plans and other assets that pass outside of the will,” said Aufseeser.
4. Choose a guardian for your child. If you have children, this is the single most important aspect of your will. “In most jurisdictions, a legal will is the only way to name a guardian for a minor child in the event of your death,” Aufseeser said. “A guardian steps into the role of parent but does not necessarily have direct control of the money.” Instead, parents should consider establishing a trust and designating a trustee to oversee the assets on behalf of your beneficiaries while they’re still minors.
5. Decide who gets what. As far as assets go, O’Brien said there are two primary concerns. “The first is what’s called ‘tangible personal property,’” he said. This refers to all of the physical items you leave behind but not financial property like a bank account. “Most wills I’ve written or seen have a provision stating: ‘I leave my tangible personal and household effects, jewelry, silver, china, furniture and furnishings to my children [or other primary beneficiaries] to be divided among them into substantially equal shares as they agree; provided that if there is no agreement among them within six months after the date of my death, then my Executor shall sell said property and add the proceeds of sale to the residue of my estate.”
The second concern is what happens to your financial assets. This could include life insurance policies, your 401(k) account, stocks and bonds that you own and any money you have in a savings account. Unlike your personal property, which is divided up according to your will, financial assets may include their own beneficiary designations. For example, if you share a joint bank account with a spouse, that account and any money in it would remain under their ownership. (Of course, you may still want to name beneficiaries in the unfortunate event that both of you should pass at the same time.) Review each of your financial accounts and determine which ones need to be named in your will and handled by your executor. With both tangible and intangible assets, be as clear as possible about who gets what. You don’t want to leave any room for ambiguity, or your loved ones could find themselves in a family feud.
6. Make it official. Death can be a stressful time, so making your will as rock solid as possible will help ease the burden on your family. Review your local laws to determine exactly what you need to do to make sure your will stands up in court. The easiest way to do this is to research and follow the laws in the jurisdiction in which the will is created, said Aufseeser. “It’s possible that a will can stand up in court even when formalities are not followed,” he said. “However, this creates a huge financial and emotional drain on all involved.”
Option 2: Writing a will using a lawyer
- Pros: Hiring a lawyer when setting up a will means you’ll have one-on-one access to an expert who can answer all of your questions and leave you 100% confident that all your wants are met—especially if they’re complicated. “A lawyer is going to tailor the will to your specific requests,” said Randolph Rice, an attorney and owner of the Law Offices of Randolph Rice. He cautions that websites or apps that provide will-creation templates often take a cookie-cutter approach, and if you have a large estate and specific things you want to see happen after your death, these options might not be enough.
- Cons: This is likely the most expensive option. Expect to pay anywhere from $300 to $1,200, according to DIY estate planning site Nolo. So if you do go this route, be sure to head into your meeting with the lawyer prepared with specific questions so you don’t waste any time.
How to create a will with a lawyer: Writing a will with a lawyer starts with an initial consultation where the lawyer will ask a series of questions to help you draft the will. “This is probably the most important step,” said Rice. “The lawyer knows what can be included in a will and the proper questions and information to solicit from the client.” After the initial meeting, the lawyer drafts the will and then schedules a follow-up meeting to review and sign the documents. To prepare for the initial meeting, Rice suggests asking yourself the following questions:
- Who do I want to be my executor or personal representative?
- Do I want a funeral and a viewing?
- Do I want to be buried or cremated, and where do I want to be buried or my ashes distributed?
- Do I want to leave any property to anyone?
- Do I want to leave money to a person or organization?
- Do I want to leave any personal items to friends or family?
- Gather the full names, addresses and phone numbers for all beneficiaries or other people you will name in the will.
- If you have pets, do you want to leave them to someone?
- How do you want your estate divided upon your death?
- Do you want to set up a trust for a minor or a child?
- Do you want your will filed for safekeeping with the proper governmental agency? (For example, in Maryland, where Rice practices, the Register of Wills would be the appropriate place to keep a finished will. There, it would be filed and sealed and left unopened until your death is proven with a death certificate.)
Option 3: Making a will with an app
- Pros: Apps can streamline the will-creating process by pulling information directly from your phone and populating certain fields with information. Some even create texts or emails that the user can send directly to the people they list in their will, and short video tutorials help introduce users to terms they should know before getting started. These apps are often free or very low cost to use.
- Cons: For simple wills with no caveats, this might be a good option, but if you have anything complicated to list, professional advice from a lawyer is probably your best bet to ensure no mistakes are made.
How to write a will with an app: According to a recent survey by Fabric (an online financial services provider), almost three out of four people under 35 who’ve made a will did so on a phone or tablet. If you’re interested in breezing through the will-creating process, companies like Fabric, Tomorrow and Willing have apps to help. “Especially if you have a relatively straightforward estate, creating a will online might make sense for you,” said Allison Kade, editorial director at Fabric. Kade—who is married with one child—made her own will using the Fabric app and pointed out that you can even create a will for your spouse using the same answers that appear in yours. “Having ‘matching’ wills is a good way to help avoid confusion down the line that could be caused by conflicting instructions,” she said. Creating a will through an app is relatively fast (Kade said the median time for one of their customers to create one was seven minutes) and doesn’t require any knowledge of legalese.
“We just ask you a number of questions—who should inherit your belongings, who should take care of your kids if something happened to you—and then draft it up for you as a will. We deliver it to you as a PDF, along with a checklist with instructions on how to make it legally binding.” As a caveat, Kade points out that no one at the site is actually a lawyer, and they don’t provide legal advice. “If you have a complicated family situation or lots of assets or niche instructions, it may make the most sense to consult an attorney,” she said.
Option 4: Creating a will online
- Pros: Sites like LegalZoom offer software that guides you through the process of writing a will and other estate documents at a fraction of what it might cost you to do so with a lawyer. For example, LegalZoom prices start at $69 for basic wills and go up from there.
- Cons: If your will is simple enough, then going this route might work, but as with apps, if you have anything complicated to list or questions about specific needs—like family in another country that you’d like to include—then it helps to speak with a lawyer. It also might help to have someone explain certain legal jargon as you’re creating the will, but one or two over-the-phone consultations with a lawyer is often included in the price of these services, so you may be able to get all your questions answered that way if they aren’t too complicated.
How to make a will online: LegalZoom and RocketLawyer tend to corner the market when it comes to online estate planning, but the companies that provide the apps listed above also allow for online will creation. You’ll need to gather your information in the same way you would if you were meeting with a lawyer, except that you’ll input everything yourself.
At the end of the day, the effort it takes to put together a will is nothing compared to the peace of mind it’ll provide. “I also do a lot of estate litigation, which means I’m involved in cases where estate plans have broken down,” said Aufseeser. “A death of a loved one is an emotional time, and you cannot just expect people to ‘do the right thing.’ The law gives you the right to prepare a will, and everyone should take advantage of that right.”