There are two ways to write a will: by yourself or with the aid of a professional.
“Do it yourself” wills: Writing a will by yourself is less expensive than working with an attorney. Expect to spend between $30 and $100 for will writing software. If you have a relatively simple estate, going this route is probably acceptable for your personal situation, but if your situation is at all complicated, “do it yourself” tools (forms, software, and websites) simply can’t ensure 100% compliance with state and federal guidelines.
Work with a lawyer: An attorney specializing in estate planning not only can make sure the will you produce meets all governmental guidelines but also will be able to help you to create planning directives (a future post) and, if necessary, trusts( another future post!). Legal fees for producing a will usually range from $300 to $1,000 per person.
If you choose to work with a lawyer, always request and check references before beginning. The first step is to call your state’s Bar Association then look for a lawyer that will really listen to you, your concerns, and your wishes.
Each state has specific estate planning laws and requirements. These include guidelines for spousal rights for married couples and community property statutes that decide who gets what when someone dies intestate (without a will). Other state guidelines may direct who can and cannot be an executor, how minor children are to be cared for, and how a will must be witnessed.
Choosing an executor
When you write a will, you have to choose an executor — the person or institution responsible for settling your estate after you die (the executor is sometimes called a personal representative). An executor “executes” your wishes as they are outlined in your will. Make sure you choose an executor you trust to fulfill this responsibility, and always get his or her consent before finalizing your decision. To choose an executor:
|If You Are||You should|
|Single||Try to avoid choosing a parent, since your life expectancy probably exceeds theirs.|
|A parent||Though the oldest child is the most common selection, don’t just choose your oldest child by default. Consider whether complications, such as sibling rivalries, might occur.|
|Don’t have a suitable relative||Choose a friend you trust, or name a bank or other trust department or perhaps your attorney.|
In addition, before selecting an executor:
- Make sure your executor will have access to liquid assets (cash) sufficient to cover the costs of probate, legal filings, and so forth. This amount should total at least $5,000 but could be as much as $25,000 or more if you have assets in multiple states, have complicated debts, or if the executor must travel extensively to settle your affairs.
- When choosing a family member or friend, always remember that being an executor requires a significant investment of time, money, and emotion. They’re going through a grieving process.
Executor’s copy of the will
Once your will is written, make sure the executor has a signed, witnessed copy before your death. Don’t keep your only copy in a safe-deposit box since these are usually sealed when you die (though your executor can eventually gain access). It’s best to provide a separate signed and witnessed copy to your executor before you die.
Your spouse’s rights in a will
You can usually leave all your personal assets (and your interest in joint assets) to your spouse without estate or income tax consequences, but only if you have a will that affirms your wishes. Other important considerations:
- You can’t “disinherit” your spouse unless you have a signed prenuptial agreement (pre-nup) authorizing you to do so.
- Property held jointly, such as a primary home, usually goes directly to the other owner(s) — most often to your spouse (if he or she is the other owner). Property held jointly may be classified as tenants-in-common, joint tenants with rights of survivorship (JTWROS), or tenancy by the entirety. Real estate owned as tenancy by the entirety applies solely to married couples. In this case, neither spouse may direct the property to anyone other than a spouse.
- Your share of any property held as joint tenants in common (JTIC) can usually be left to whomever you wish, including your spouse, as long as you comply with your state’s laws in preparing your will.
Community property states
Currently, nine states have laws that consider all property acquired during a marriage “community property” — Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
In these states, a husband and wife own jointly all assets purchased with money earned during the marriage. Estate planning in states with community property laws can be complex, so be sure to consult an attorney to help devise a plan to ensure that your wishes will be carried out if you die before your spouse. Spouses often wish to leave a portion of their jointly owned assets to people other than their spouses, such as children—a decision often best facilitated by a trust in addition to a will.
If you have minor children, you can use your will to identify a guardian who will be responsible for taking care of them should something happen to you. Get the consent of anyone you are considering as a guardian before selecting them. Also make sure that any guardian you select has sufficient financial resources to take care of your children.
Getting the will witnessed
In order for a will to be official, it must be signed in the presence of a notary by at least one, and usually two,witnesses. Anyone can serve as a witness to a will as long as he or she is not a spouse of the writer of the will. In most states (though not all), a witness may not be a beneficiary under the will.
If you work with a lawyer, he or she will make sure the will is witnessed correctly. After the will is witnessed, it may take several weeks for the legal documents to be completed.
Whether you use will writing software or decide to go the attorney route, writing a will is an important part of your financial life. It ensures that your assets go to the people you want, and it makes sure your wishes aren’t settled by a judge who probably never knew you.