There’s much to plan for in life — college, your wedding, your first child, life insurance — and with more than enough to keep you busy, it’s easy to forget about your will. After all, no one wants to sit around and dwell on their death, but it is perhaps one of the most important decisions you will make in your life.
“While no one likes to think about their own mortality, one thing we can all do to alleviate the burden placed on our loved ones after we’ve departed is to create a will,” says Michael Bloch, CEO and founder of Pillar, a digital planning tool for families that allows you to organize and secure important documents.
Here is why you need a will and how to protect what you most cherish after you are gone.
What is a will?
Many think of a complicated document full of confusing legal jargon, but a will’s purpose is actually quite simple despite its importance. A will is a legal document that transfers your property at your death to designated persons. It is revocable, which means that it is subject to change until your death. It becomes effective only upon your death.
“Wills have been a cornerstone of estate planning for nearly 500 years, and their importance is as great today as it ever has been,” says Patrick Hicks, head of legal at San Diego-based Trust & Will, where he oversees all estate planning offerings and corporate legal affairs.
“Wills are not just about assets and property. Wills deal with several issues that are required to be resolved after death — who will care for your children and pets, who will make decisions about your estate, what will happen to your remains, and who will receive your assets? Every adult should have a will that covers these issues.”
Types of wills
Everyone’s needs are different, so there is not just one type of will.
“Wills can be really, really long if you have a complicated estate, or they can be incredibly short if you have a simple estate and/or distribution ideas,” explains Ben Birken, CFP, financial adviser at Woodward Financial Advisors in Chapel Hill, North Carolina. “Some people have specific instructions regarding one-off bequests at their death, while others simply pass things to a surviving spouse, children, and/or a trust.”
These are some of the types of wills that exist.
- Testamentary will
Prepared in advance, you sign this will in the presence of witnesses. It is the most common type and often the best choice to protect your estate.
- Holographic will
This is a will that is written by hand. It is often used as a last resort in emergency situations because it is not valid in all states.
- Oral will
This is a verbal will that is spoken in front of witnesses. However, most courts prefer instructions in writing, so it is not a form that is widely recognized nor recommended.
- Mutual will
Sometimes, a couple will create a joint will. Mutual wills can make it so that when one member dies, the other remains bound by the existing will.
- Pour-over will
This type of will is a great choice when you plan to pour your assets into a previously established trust when you die.
Why you should have a will
There are many reasons why you should have a will, including:
- Clearly identifies ownership of your property and how much
- Assigns a legal guardian for your children
- Hastens the legal process of assigning your assets
- Enables you to donate property or funds as charitable donations or other gifts
- Helps you save on estate tax, depending on how you structure your will
“People should get a will because it’s their last, best chance to say what they want to have happen when they die,” says Birken of Woodward Financial Advisors. “Without one, both asset distribution and guardianship of children default to state laws. Those laws may result in someone receiving assets that you don’t want them to have. Or in the case of minor kids and a common death of both parents, a judge will decide who should take care of them without input from you.”
What does a will cover and not cover?
According to Morris, a will can cover these main areas:
- Guardianship, which handles who will take care of your children if you die.
- Assets, which assigns who will get your car, jewelry, furniture, etc.
- Real property, which applies to homes and buildings.
However, it can quickly get complicated, depending on which assets you own.
“A will covers all of the assets, both tangible and intangible, that the maker had outright, sole ownership at the time of death,” explains Matthew Erskine, managing partner at Erskine & Erskine, a fourth generation firm dedicated to trusts and estate planning. “So, for example, a bank account that is in joint name with the maker and their spouse is not covered by the will, since the spouse as joint owner gets the ownership of the bank account by operation of law.”
Wills also do not cover contracts, which includes life insurance policies and retirement accounts that are controlled by any beneficiary designation forms filed with the insurance company or the custodian of the retirement account, he says.
“It also does not cover certain rights a surviving spouse and minor children have under statutes,” says Erskine. “A will can also cover certain rights, such as copyrights.”
How do you get started?
There are a few different parties that can be involved in the writing of your will.
“There are three individuals typically involved in a will; the testator who initially creates the will, the beneficiaries who receive the testator’s assets upon death, and the executor who administers the will,” Morris says.
You can always go the built-it-yourself route and build a will online, too.
“Another misconception is that setting up a will is timely and expensive, but these days, you no longer need to go to an attorney and pay high legal fees,” says Andrea Woroch, a nationally recognized family finance expert. “There are online options that make it affordable and convenient to set up right for home in a matter of minutes. “For example, you can set up a will online at sites like Trust & Will, which offers step-by-step instructions with live chat support. They have a quiz on their homepage that will guide you toward which estate plan is the best for you, based on a few important items, such as whether you own a home or have children.”
Another option is Fabric, a company that offers wills, life insurance, and tools to organize your family’s finances, all online or via the app.
While online options can be a good choice for those with a more simple estate, you may prefer to work with an attorney if your estate is more complex.
“This document is simple on the surface but can become very detailed and complicated if you have a large estate,” says Sa El, co-founder of Simply Insurance. “I would suggest speaking with an attorney if you have a complicated financial situation or a huge amount of assets that will need to be split up. A basic will might not work.”
What happens if you don’t have a will
It’s easy to push off your will, saying that you’ll get to it another day, but life is unpredictable, and we never know what each day will hold.
“As a lawyer, I understand the implications of not having a well-crafted will and have seen first-hand the devastating impacts that can occur when you are a ‘special’ case,” says Andrew Taylor, founder and director at Net Lawman. “What do I mean by a special case? I mean someone who is in a relationship but not married, who has children from another relationship, who even has a pet they want to be kept safe once they pass and have specific instructions.”
Pillar’s Bloch says if you pass away without a will, the state will effectively make one for you.
“All estates pass through a court process known as probate, and when you’re intestate (without a will), it will be up to a judge to decide how your assets should be split and who will take guardianship of your dependents,” Bloch says.
That’s not always a good thing. “Oftentimes, these decisions will be much different from how you would have envisioned them and can cause a lot of burden and stress for your survivors,” he says. “To avoid this situation and better organize your family life, every adult should become a testator by creating a will that outlines their last wishes and dictates how they should be carried out. This will make settling your affairs much easier after you’re gone and reduce the amount of time and money that will be required, along with avoiding intestate succession.”
Marlene Quade, co-owner of Prime Mutual, a company dedicated to helping people find end-of-life financial solutions, points out the risks of custody issues if you lack a will. “For young families, the most important reason to have a will is to appoint a guardian for your minor children; absent a will, the state chooses among biological family or a state-appointed guardian,” she says.
Lastly, don’t forget: a will is by no means final while you’re still alive.
“It is important to remember that a will is not set in stone,” Quade says. “You can make changes as your life circumstances change.”