The Importance Of Having A WillLife Events
Even the most careful planners among us have blind spots, and mortality can be one of them. Which may be why many Americans do not have a written will. While the subject of a will and its implications can be unsettling, it doesn't make it any less important to plan for the inevitable.
Why do you need a will? It is a plan for your assets when you are no longer around to make decisions, which can make it easier for heirs and beneficiaries to settle your affairs. More importantly, for parents of minor children, a will is a plan for their guardianship and well-being. Here are steps to consider and general information to keep in mind when you draft your will:
What is a will?
A will is a legally enforceable document that provides instructions as to how you want your property distributed after your death. This may include, but not be limited to, instructions on:
- Where your money should go.
- Who will take ownership of any real estate you own.
- Who will be the guardian for your children.
Wills can be as basic or as elaborate as you wish. You could write out your will right now on a sheet of paper, although without witnesses or a notary, it might not be legal in your state. There are other, more professional means, as well. Dozens of computer programs and templates are available to help you write a will, websites offer resources and information on wills, and many attorneys specialize in drafting wills, and practice probate and estate law.
However you choose to draft your will, to generally ensure it stands up to legal scrutiny, it's important to:
- Work with a lawyer.
- Have at least two witnesses there to verify that you signed the document yourself.
- Have the will notarized.
In general, for a will to be valid, you must be in sound judgement and mental capacity at the time you sign it and, in most states, you must be at least 18 years old. Be sure it's clearly marked as your will, and kept in a safe, but not hidden. Consider sharing its location with one or more trusted people in your life.
Elements of a Will
While the information in your will may be entirely different from someone else's, there are elements that are generally the same.
1. Assets, or what you are willing
Whether it's a long list or a short one, it's important to make a list of all the assets you own. Include all of your:
- Bank accounts
- Credit cards
- Retirement funds
- Money that will be paid from your life insurance policy
Certain assets that are countable in your estate can pass directly to beneficiaries by operation of law rather than by operation of your will and the probate process. These beneficiary-named accounts generally include, but are not limited to, life insurance policies, annuities, IRAs and qualified retirement plans such as 401(k)s.
Keep in mind that this list can and should be updated frequently with changes to your life and assets.
2. Beneficiaries, or who are you willing to
Beneficiaries are the people whom you designate to receive your assets. For many of us, these include spouses, children and immediate family. Beneficiaries can also be organizations that you want to support, life-long friends or even total strangers. Just remember to include both primary and secondary beneficiaries in case the primary ones die before you or don't meet the conditions to receive your assets.
You can get as specific as you need to in your will, for example making sure that your son inherits your heirloom pocket watch or your granddaughter gets the car. You also have the right to specify certain conditions for getting your assets. Now, you might not be able to make your cousins stay one night in a haunted mansion, but you can set aside money for your daughter contingent on her graduation from high school or for your nephew to start that small business he's always wanted. Specifics like these may not be legally binding in some states, which is one reason you should consult a lawyer.
3. Guardians, or who should care for your kids
If you have minor children, you need to decide who will become their guardians. In most cases, that's the surviving parent, assuming you share custody, but it should be specified in the will. You'll also need to pick a legal guardian should something happen to both parents. This decision should not be taken lightly and should be discussed with the potential guardians.
4. Executor, or who makes sure this happens when you're gone
What good are all these decisions and wishes if no one carries them out? That's where the executor comes in. This person is named in the will to ensure that your estate is divided up as you have outlined it. For obvious reasons, this should be someone you trust. He or she will also be responsible for paying any debts that are associated with your estate and distributing your remaining assets. According to USA.gov, the executor is legally obligated to follow the wishes written in the will. You can consult an attorney to help you determine the best choice for an executor.
Upon death, the executor will file paperwork with the local probate court. (Probate is a legal process that takes place after someone dies.) During probate, your executor proves your will is valid. Once that's been validated, he or she will inventory your property, pay debts and taxes, and distribute the remaining property as the will describes (or according to state law, if there's no will).
An important difference between wills and life insurance is that life insurance is a contract between you and the life insurance company and the death benefit will go directly to the beneficiaries named in the policy or designated beneficiaries (with few exceptions) and not through probate.
What can happen if you don't have a will?
Dying without a will (known as dying "intestate") can be a problem for your loved ones, and make the pain of dealing with your passing all the more frustrating. Laws vary from state to state. In most situations, the bulk of your property goes to your next of kin, usually your spouse or children. However, depending on the state, your property may:
- Go to your spouse, even if you have children together.
- Get divided up among your spouse and descendants.
- Become a battle between parents and siblings.
Even if you told everyone in your family what you wanted, if it's not in writing, your wishes may not be followed.
Discussing what will happen after your death is not pleasant, but it's an important thing to do. When you feel the time is right, talk to a lawyer and start drawing up your will. Remember, it can be changed or updated. Then have a chat with your family to make sure they know what to expect after your passing.
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