Writing a will is not exactly a fun experience, whether you do it yourself, or hire a lawyer. No one likes to dwell on their own mortality. In fact, an AARP survey revealed that two out of five Americans over the age of 45 don't have a will.
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However, it's an important favor that you can do for your family. The time right after your death is inevitably going to be tough on them, and having a well-written will can minimize the legal and financial complications they'll face.
Do you even need a will?
Whether or not you enjoy the idea, a will is a necessity. If you don't have one, after your death, your estate will go through a form of probate called intestate succession that's costly and takes a long time. A judge will appoint an "administrator" to settle your estate. The administrator is bound to split up your estate according to the laws of whichever state you live in, which could produce results that will make your beneficiaries very unhappy.
For example, in many states, stepchildren are not considered to be your children for purposes of inheritance rights. Thus, your stepchildren might inherit nothing if you don't use a will to spell out your wishes to leave them part of your estate. All in all, not having a will puts unnecessary stress on your family.
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You don't have to get a lawyer to draft your will. It's perfectly legal to write your own will, and any number of products exist to help you with this, from software programs to will-writing kits to the packet of forms you can pick up at your local drugstore. These do-it-yourself (DIY) options can be a good choice for someone with an extremely simple estate, say, with one or two beneficiaries and no major property, such as a house, to worry about.
However, if you've got a complicated or valuable estate, you're better off seeking legal advice. One way to be sure that your will is correctly written but still minimize the cost is to write the will yourself, and then hire a lawyer to review it and make recommendations. Otherwise, you might go through the hassle of writing a will, only to have your beneficiaries find out (too late) that it's not valid.
State laws regarding wills
If you do decide to go the DIY route, the first thing you'll need to do is learn your state's requirements for wills. Different states have different rules regarding things like how many witnesses you need, whether your will needs to be notarized, and who can contest a will. FindLaw has a list of the basic laws each state applies to wills, although it's a good idea to double check with an attorney or look up your official state codes to confirm that these rules are still in effect.
Choosing an executor
The most important thing your will does is to appoint an executor -- the person whose job it is to manage your estate for you according to your wishes as stated in your will. Pretty much anyone can serve as executor if your will isn't too complicated, but if you've got a lot of individual bequests and trusts to work with, appointing an attorney -- or someone with legal experience -- as an executor would be a better idea.
It's also OK to name joint executors, such as an adult child and an attorney. In that situation, the attorney executor could advise your child and help him or her navigate the waters of managing your estate.
Leaving a specific item to a specific person or organization is called a "bequest." Some states let you list your bequests in a separate document, called a letter of instruction; others require you to put everything in the will itself.
Another option is to leave everything to one person, and then informally explain to that person how you want him or her to divvy up the goods. However, be aware that your instructions aren't legally binding, so after you die, that person could divide things up differently, or just hang onto everything. Clearly this is not a good idea unless you're sure that person is trustworthy.
It's a good idea to write into your will that you give your executor the right to pay any bills that are outstanding when you die. This can enormously simplify the process of settling your estate. You should also make sure that your executor has all the necessary information, including the locations and passwords for your various accounts and assets.
If you have a preference for how or where your burial or funeral should happen, include it in the will. Finally, you and your spouse should have separate wills even if those wills end up being practically identical. After all, it's not likely that you'll both die at the same time, and any property that's not in both your names would be awkward to list in a joint will.
Once you've finished drafting your will, put it someplace where it will be safe, but easy, for your executor to reach. A safe deposit box could prove challenging for your executor to access, so a better choice would be a fireproof document box or safe that you keep at home.
And don't forget to review it every few years and make any necessary changes. Yes, it's a hassle, but remember that you're not doing this for yourself -- you're doing it for the people you love.
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