Print PageWhat is A Will?
A Will is a legal document that allows you to have the last word after your death. When you make a Will, you choose who will receive your property and financial assets after your death. You choose who will carry out your wishes, and you select whom you want to care for your minor children.
Why You Make a Will
The main reason to make a Will is to distribute your estate (i.e. property and assets) to those you choose. If you die without a Will, you will have no control over how the state distributes your assets, whether or not you have minor children. If you don’t write a Will, whatever you leave behind will probably go to your parents. If no relatives can be found to inherit your property, it will go to the state.
If you don’t have a Will, and you have children, some of your property may not go to your spouse, but directly to your children. This can be a problem, as the surviving parent may need to get court permission to spend or invest the money. More importantly, in the absence of a Will, a court will determine who will care for your young children and their property if the other parent is unavailable or unfit.
If your desires differ at all from the state laws governing who gets what, you must have a Will. If you care who your personal representative will be (the person who is given the responsibility and authority to gather and distribute your assets in accordance with your wishes), you need a Will.
What If You’re Married?
A popular misconception is that your surviving spouse will inherit everything if you have no children. Most states, however, give only one-third to one-half of the estate to your survivor. The remainder would generally go to your parent(s), if alive. If both of your parents are dead, many states would split the remainder among your brothers and sisters.
What If You Have a Significant Other, But You’re Not Married?
If you have a life partner but no marriage certificate, a Will is an essential document. Without a Will, state law will dictate where your property goes after your death, and unmarried partners get nothing. (There are only a couple of states that are exceptions to this rule.) Instead, your closest relatives will inherit everything.
What If You Have Young Children?
The most important thing a Will does for your children is identify a guardian to take care of them personally and take care of their property. The guardian will take over if both you and the other parent is unavailable. That’s not as unlikely a scenario as you might think. If you fail to name a guardian, a court will appoint someone, possibly one of your parents. If you die and your spouse survives you, without a Will, the state will awards one-third to one-half of your property to your surviving spouse, and the remainder to your children, regardless of age.
What If You are Single with no Children?
Most state laws favor your parent(s) in the distribution of your property. If both of your parents are deceased, many states divide the property among your brothers and sisters.
To Be a Valid Will, It Must be a Will
The document has to look like a will. It must appear to the court that the document was intended to be the final expression of your wishes as to the disposition of your property to take effect upon death. That is why a general letter stating your desires, or a list of property with beneficiaries names is usually insufficient. A regular Will is witnessed by others, signed and dated by you and the witnesses.
Can You Make a Will Yourself?
Yes, you can make a Will that does not involve professional legal advice. Most people can draft their own Will with the aid of books or software that is commonly available. These resources will guide you through the various terminology and options you need to consider. Forms for Wills are available in stationery stores. Nonetheless, you will still need to sign and date it in the presence of two or three witnesses (people who will not be inheriting anything under the will). You and the witnesses will either have to notarize the Will or sign an affidavit before a notary public.
What Needs to be Considered in a Will?
A Will determines who gets your property and assets and who takes care of your young children. Generally, only spouses are legally entitled to a share of your property. Your children aren’t entitled to anything unless it seems that you unintentionally overlooked them in your will.
A Will includes the naming of an executor (the person responsible for carrying out your wishes), allows for payment of debts and taxes, specifies who gets tangible property (i.e. special collections or jewelry) and disposes of the remainder of property.
What Happens If You Don’t Have a Will?
Your estate will go to probate, the court-supervised process of paying your debts and distributing your property to the people who inherit it. The state has formulas, some of which have been briefly described above, for who gets what.
Be mindful that the average probate lasts for months, sometimes even a year, before the inheritors get anything. In many cases, about 5% of your property’s value will be consumed by lawyer and court fees. In other words, if your home, savings and car have a gross value of $400,000, probate can use $20,000 of that. In addition, there are other expenses, such as court costs and appraiser’s fees.
Source: Omni Financial®
