A will is a written legal document that outlines how you want your assets and property to be distributed at the time of your death. A will can also be used to appoint a legal guardian for your minor children.
A will may be revoked or modified at any time up until the time of your death. Additionally, although the purpose of a last will and testament are the same in every state, each state does have specific state requirements that must be followed to create a valid will.
Different Types of Wills
There are several different types of wills, including:
The information provided below pertains specifically to testamentary wills. If you have questions about the legal authority of various wills in your state or what type of will is best for you, you will need to review your financial and personal situation with an attorney who's familiar with your state’s laws.
Why is a will important?
Creating a will is not just important for individuals and families who have a great deal of assets or financial wealth. Regardless of your financial status, having a valid will can ensure the smooth transition of your assets after your death. More importantly, however, if you have small children, a will can determine who will care for them. Creating a valid will and making careful and deliberate decisions prior to your death are critical to ensure that your choices are followed and the decisions are not left to the state.
Steps to Creating a Will
1. Determine who will care for your minor children.
The first and most important decision that you will need to make when creating a will is to determine who will care for your minor children if you and your spouse or other parent dies. If one parent survives, they are generally given custody of the minor children. However, if both parents die and there is no will, the state will make the custody decision.
You will need to consider who will have the time and energy as well as the emotional, physical and financial resources to care for your children. You will also want to find someone who has a similar parenting style. This might include finding someone who has values and spiritual beliefs that are similar to those of you and your spouse.
After you have identified the new guardian, you will need to discuss this decision with them. Make sure that they are willing to accept the challenge of parenting and that they understand the emotional and physical demands of your request.
2. Determine who will be the beneficiaries of your assets and property.
The next step in creating a will is to determine who will be the beneficiary to receive your assets and property when you die. For some, this task will be simple. For example, you may simply give everything to your wife or divide your assets between your two children. For others, however, distribution can be very complicated.
Beneficiaries to consider can include your friends, other relatives, grandchildren, and charities and religious organizations. Keep in mind, however, that state laws may protect your spouse and children (in certain states and under certain conditions) from total disinheritance. Talk to a legal professional if you have questions about your state’s laws.
Note: Failure to specifically name beneficiaries in your will may allow the state to determine who inherits your property and assets. This is called dying intestate, and intestacy laws vary by state.
3. Identify all of your assets and debts.
Step three requires that you identify all of the assets (i.e., cars, family heirlooms, jewelry, etc.) and property that you solely own. Debts must also be identified, including credit cards debts, personal loans, mortgage debt and outstanding taxes. Assuming that you are solvent when you die – meaning that your assets are greater than your liabilities – the executor will pay your debts prior to distributing your assets.
4. Appoint an executor.
Step four in creating a will is to assign an executor who is responsible for protecting your assets until the debts and taxes have been paid. Next, the executor will distribute your assets and property according to the requirements outlined in the will. To find the right executor, you must consider who is best able to carry out your wishes with honesty and integrity. Although this person does not need to be an attorney or financial expert, they do need to have the time and availability to act as your personal representative.
5. Create a valid will.
The final step in creating a valid will is to actually write the will. This can be done by drafting it yourself or by using an online program. Review your state’s laws to determine what information must be included. For example, you will need to clearly label the document as your “Last Will and Testament.” You will also need to include information that you meet the age requirements, that you are of a sound mind, and that you are not under duress. Include your name, address, Social Security number and birth date.
The information mentioned in the other steps above must also be included: for example, the executor (and alternate), heirs and the guardian for your children. You will also need to list your assets and property, and how you would like them divided.
Finally, you must sign the will and have the process witnessed. For this step, it’s very important to understand your state’s laws. For example, some states may also require the will to be notarized and the will to be "witnessed" by two or more witnesses. Failure to follow your state’s requirements might invalidate your will.