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Creating a WillHaving a will ensures that your wishes about income, property and family will be known and that your assets will be given to the people you have named as beneficiaries when you die. It is important to have a will regardless of your health, wealth or marital status. If there is no will, the laws in your state will determine how your assets are distributed. A will does not have to be expensive or complicated to create and can be written as often as needed if circumstances change. Creating a Will: Detailed InformationThis information is meant to be a general introduction to this topic. The purpose is to provide a starting point for you to become more informed about important matters that may be affecting your life as a survivor and to provide ideas about steps you can take to learn more. This information is not intended nor should it be interpreted as providing professional medical, legal and financial advice. You should consult a trained professional for more information. Please read the Suggestions and Additional Resources documents for questions to ask and for more resources. A will is a written document that states how you would like your financial and other legal matters to be taken care of after you die. Regardless of your health, wealth or marital status, it is important to have a will. Having a will ensures that your decisions about property and family will be known and that your assets will be distributed among the people you have named as beneficiaries. Keep in mind that a will does not have to be expensive or complicated to create and can be rewritten as often as needed if your wishes or circumstances change. If you do not have a will, the laws in your state will determine how your assets are distributed. Before you start preparing your will, take time to talk with family members and friends who will be impacted by your will. Providing them with information about what is important to you and what you believe should be done with your assets will help them in the future. It is also helpful to talk with them to be certain that you know all the facts about your family's assets. For example, if you are married, you need to know specific information about your spouse's income, benefits, investments and debts. This document provides basic information about creating a will, including:
Do you need an attorney to prepare your will? Generally, it is best to have an attorney who specializes in estate planning help you to create your will (also known as a "last will"). Any mistakes made when creating your will could result in delays and unnecessary expenses as the estate goes through "probate." Probate is the legal certification process that proves a will is valid. An experienced attorney will know the legal requirements for creating a formal will according to the specific laws of your state. You need to have an attorney assist you in creating your will if it includes complex matters, such as:
Doing a comparison of the fees charged by attorneys in your area can help you decide what is a reasonable rate for creating a will. An attorney usually charges an hourly rate, but some charge a flat fee for preparation of a basic will. Be certain to ask the attorney about fees during your first consultation. The more you have done to collect and document your personal information, the less work the attorney will have to do and the lower the legal fees are likely to be. If you are a member of a prepaid legal service, it is possible that the service will create a will for you as part of your overall fee. What if you want to write your own will? You may write your own will. However, your will is more likely to withstand any legal challenge if it is prepared by an attorney. For example, if you write your own will and it is challenged by a family member and subsequently declared invalid, the state may ignore your intentions and distribute your property according to its probate laws. This process could take a long time and cost your estate a great deal of money. It may work well to create your own will under certain circumstances. For example, if your family, financial and legal situations are not complicated, you might be able to create your own will using forms available in a "will kit" that can be purchased in office supply stores, bookstores or online. Consider writing your own will only if you have limited assets, all of your assets are registered in your name, you want to leave your assets to only one or two people, and there are no major tax implications to consider. Keep in mind that before you attempt to write your own will, you need to know your state's legal requirements, including:
Wills created with the assistance of an attorney are usually the most effective method of ensuring that your wishes will be carried out. However, some states also recognize oral and/or handwritten wills, although there is a greater chance that your will may be contested during probate. Keep in mind that there are some limitations to what can be done with these types of wills. For example, you cannot distribute real estate property through an oral will, only personal property. In addition, both oral and handwritten wills have legal requirements regarding the need for credible witnesses to appear in court during probate to prove that the will is valid. Specific information can be found by looking into your state's statutes and probate code. If you do decide to prepare your own will, consider having an experienced attorney review the document and oversee the execution of your will. Typically, the fee for this legal service should be less than it would be if the attorney does all the work to prepare the will. What happens during the probate process? Probate is the legal certification process that proves a will is valid. The probate court (called "surrogate court" in some states) ensures that your taxes and debts are paid and that your remaining assets are transferred to the beneficiaries named in your will. Each state has its own probate process. If you do not have a valid will, the probate court will appoint an executor to distribute the assets in accordance with state law. This process is much more expensive than naming an executor in your will, and the expenses must be paid out of your estate before any assets are distributed. The probate process time can vary from weeks to years depending on factors such as how busy the court system is and the complexity of your estate. Beneficiaries usually do not receive assets until after the will goes through probate. In some states an executor may be allowed to give a beneficiary an advance on the inheritance. If you want this to be possible, you need to state this in your will. What information is needed to begin creating your will? To begin the process of creating your will, the following information should be collected. If you are working with an attorney, he or she will also request this information. 2. The legal names and contact information of the executor or co-executors (also called personal representative, executrix or administrator) and the alternate(s) you name in your will. 3. The legal names and contact information for all of the beneficiaries and alternates that you have selected. 4. The legal names and contact information for the guardian or guardians you name for your minor children. 5. Copies of any documents that will be relevant to your estate, such as:
6. Documentation of jointly-owned property and the legal names and contact information of all co-owners. 7. Lists or documentation of all of your assets. Also include the current financial value and beneficiary information for each, including:
8. Lists or documentation of all your debts and other obligations, such as:
What are some important functions of a will? Having a will gives you the opportunity to control what happens to your estate instead of the law and courts in your state making these determinations. The following are some of the most important functions of a will:
1. Name the executor or co-executors of your will. The executor(s) will carry out the wishes and instructions as stated in your will and is also responsible for making certain that all legal steps are taken to protect the assets before distribution. Consider naming a back-up executor in case your first choice is unable to serve in that role when needed. The executor will be responsible for overseeing the probate estate process that includes:
Executors are not required to have specific financial or legal knowledge. Honesty, reliability and the willingness to do the job are the most important qualifications. Many people who are married name a spouse or an adult child as the executor of their will. If an executor needs help with financial or legal matters, he or she can hire attorneys, accountants or other experts and pay them from the assets of the estate. Before naming the executor of your will, discuss the responsibilities of that role with the person you intend to name in your will. Keep in mind that an executor can at any time decide to accept or refuse the responsibility or resign. If you have named an alternate executor in your will, that person will then take over the job. If no alternate was named, the court will appoint someone to step into the role. If the executor does not live in the state where you reside, there is likely to be an added expense for that person. For example, the executor may have to travel to your state to attend at least one court hearing and possibly for other reasons during the probate process. If you have named more than one executor (co-executors), there is a possibility that they may disagree when making a decision. If this happens, then the court will have to resolve the matter. In your state it may be possible to divide the specific responsibilities of different executors into separate areas. 2. Name the beneficiaries you have chosen and provide contact information. An important function of your will is to distribute your assets to the people you name as beneficiaries. Your will should indicate if you want the assets given to your beneficiaries at specific times. If there is no will or other legal method to transfer your assets, the laws in your state may distribute your property in a way that you would not. If you have a partner that you want to receive some or all of your assets but are not married, a will is definitely needed. In most states, if you have no will, state law will dictate where your property goes after your death (usually to your closest relatives) and unmarried partners typically do not get anything. Be sure to give enough information about your beneficiaries so that there will be no question about who you meant. For example, avoid simply stating "children" as this leaves things open to questions, such as whether you mean to include stepchildren, foster children and adopted children. Similarly, if you want to leave property to a charity or religious organization, be specific about who and what you mean. Provide the full name and contact information for each person and organization that you name. Find out if the laws in your state require that a percentage of your estate go to your spouse. Usually, if there is no will and you are married with children, your spouse will get a portion of your assets and your children will get the rest. 3. Name the legal guardian(s) you want the court to consider for your minor children and/or other dependents if there is ever a time when neither parent is living or able to take care of them. If you have minor children or dependents that are unable to care for themselves, the most important function of your will is to name your choice of legal guardian(s). In cases where there is no will and there is no living parent who is willing or able to care for the children, a court will decide who will be appointed as guardian. The court will go through an approval process to appoint the legal guardian after your death, with strong consideration given to the person named by you. If there are two parents, both should try to name the same person as guardian to avoid future legal disputes. Also specify special provisions that will be needed for a disabled child or other dependent. 4. Make arrangements for the management of assets for beneficiaries who are minor children. Property left to a minor child must be managed by an adult until that child reaches the legal age of adulthood as defined by your state. An attorney can help you set up a trust that allows you to legally set the terms of how your money is to be used. The trust can be created before your death, or it can be established through your will. A trustee is the person that you have designated to manage your trust account. The trustee can serve without a fee if he or she agrees to do so, or a fee can be set in the terms of the trust. If no other provision is made, then the fee will be determined by the court. Arrangements for management of assets for a minor can also be set up by leaving money or the asset(s) to a guardian to be held until the minor reaches a certain age. The guardian could be appointed while you are still alive or by a court after your death. 5. Define what each beneficiary should receive and when he or she should receive the inheritance gift. Keep in mind that the value of your assets may increase or decrease between the time that you write your will and the time that you die. For this reason you may want to word some of your gifts as a percentage of the estate rather than as a set dollar amount. For example, if you want to leave most of your assets to your children but would like a friend to receive a minimal amount, you could leave that person a small percentage of the value of your entire estate. That way, if the value of some of your assets goes down over time, you will know that your children will still receive most of your assets. 6. Identity each alternate beneficiary and what assets you want them to receive if the primary beneficiary is no longer available. Provide the full name and contact information for each person you name as an alternate beneficiary. Specify what you want them to receive and when they should receive the gift. 7. Identify arrangements for the care of your pet by naming a caregiver and specifying the care you want for your pet. In terms of your will, pets are considered as personal property and cannot be beneficiaries. This means that no property or other assets can be left to your pet. What is required for your will to be valid? For your will to be valid, it must be legally executed and typically must meet the following conditions:
If your will is written while you are being treated for a serious illness or injury, the will may be questioned by others. They may argue that the illness, treatment process or medications affected your ability to make decisions (legally called "testamentary capacity") or that your condition left you under the "undue influence" of one of the beneficiaries. If this matter goes to court, there may be a legal challenge of the will. 1. Make sure that the witnesses who sign your will are "disinterested" (will not benefit from any provision of your will). In addition, choose witnesses who are trustworthy and can be easily reached if a question about the will arises. 2. Use at least one more witness than is required by your state law. That way, if one witness is not available to testify in court, there will still be enough legal witnesses. 3. You and each witness should initial each of the pages of your will in the presence of a notary public when you sign it. 4. Have the witnesses sign an affidavit (sworn written statement) that describes their opinion of your mental state when you executed your will, including describing that you appeared to understand the nature and extent of your assets, as well as the identity of your heirs. 5. If you choose to videotape the execution of your will, start the taping process early enough so that the video will show you discussing enough information for a viewer to clearly see that you are alert, competent and sure of what you are doing. What cannot be accomplished with a will? A will cannot do any of the following:
What assets can be transferred to another person without a will? "Will substitutes" are methods set up to move property from one person to another without going through the probate process with a will. Some of your assets may already be set up to go to specific beneficiaries, such as an insurance policy or retirement plan. Will substitute arrangements cannot be changed by your will. If you want to make a change so that an asset will go to someone else, you must change the right of ownership or survivorship on each asset before your death. For example, you need to work with a banker to change a beneficiary on a bank account. Likewise, you need to work with an insurance agent to change a beneficiary on an insurance policy. If you are not sure which of your assets can be passed on to another person through a will substitute, talk to an attorney or someone who is knowledgeable about wills and estate planning. The following provides basic information about commonly used will substitutes:
How often should wills and your choices of beneficiaries be reviewed? Review your will and all beneficiary arrangements at least once a year. In addition, any time you move from one state to another, your will needs to be reviewed because each state has its own laws regarding what is required by the courts. If you have homes in more than one state and travel between them, your will needs to be valid in all the states in which you live. If your assets change, a beneficiary dies or your relationship with a beneficiary changes, you may want to change your will. This can be done by amending the will (adding a "codicil") or you can cancel (revoke) the will and replace it with an entirely new will. The requirements for amending a will are the same as when you executed it. You can usually revoke a will simply by destroying all copies of it, or by writing a new will that states that the old will is revoked. Where should a will be stored? The original copy of the will should be available when needed, so it should be kept in a safe place that can be easily accessed after your death. If you use an attorney, consider leaving the original with him or her, and let your family or a trusted friend know where the will is kept. Storing the original will document in a safe deposit box is generally not recommended. Some states require that safe deposit boxes be "sealed" upon death. This means that, at the time of the owner's death, the contents of the safe deposit box can only be removed by an authorized representative of the court. The contents are then inventoried and only released when written authorization is received from the appropriate government agency. If a safe deposit box is sealed, there are likely to be significant delays since this process takes time and the will must be officially released by the authorities. Check with your bank to be certain that you understand all the rules that are in place regarding safe deposit boxes. Your will should not be left with someone who has an interest in preventing it from being carried out according to your wishes. In addition, the will should not be stored in a location where such a person could gain access to the will. As a precaution, consider giving dated copies of your will to your executor and other trusted individuals, such as your spouse, partner or an adult child. If you have questions about the best way for you to pass assets to beneficiaries, contact a qualified attorney specializing in estate planning. Other professionals who could provide help with wills and estate planning include tax attorneys, qualified accountants or certified financial planners. This document was produced in collaboration with: David S. Landay, Esq., author of Be Prepared: The Complete Financial, Legal and Practical Guide for Living with Cancer, HIV and Other Life-Challenging Conditions. Works Cited Bugge, Lawrence J., Chair and Committee Members: Charles M. Crook, Diana S. Dowling, Thomas L. Jones, Charles G. Kepler, Brockenbrough Lamb, Jr., Robert C. Robinson, Thomas A. Shiels, M. King Hill, Jr., Carlyle C. Ring, Jr., William J. Pierce, Elmer R. Oettinger. National Conference of Commissioners on Uniform State Laws. Uniform Transfers to Minors Act (1986). Chicago, IL., 1986. Landay, David S. Be Prepared: The Complete Financial, Legal and Practical Guide to Living with Cancer, HIV and Other Life-Challenging Conditions. New York: St. Martin's Press, 1998. "Making a Will." Pueblo.gsa.gov. 2005. Federal Citizen Information Center, 22 September 2006. "Probing Probate: What You Should Know." Dummies.com. 2006. "For Dummies" online resource. 4 October 2006. "What is a Will? Self-Help Guide." AARP.org. 22 September 2006. "Wills & Estate Planning." Nolo.com. 22 September 2006. "Wills & Estates: Writing Your Will." ABAnet.org. 2006. American Bar Association Division for Public Education. 22 September 2006. Creating a Will: SuggestionsThe suggestions that follow are based on the information presented in the Detailed Information document. They are meant to help you take what you learn and apply the information to your own needs. This information is not intended nor should it be interpreted as providing professional medical, legal and financial advice. You should consult a trained professional for more information. Please read the Additional Resources document for links to more resources. Begin the process of creating your will by identifying your assets and who you want to receive them. Make a list of your assets and specify which family members, friends or organizations you have chosen to receive them.
Creating a Will: Additional ResourcesThe resources listed below provide more detailed information and support services to help you with creating a will. Please read the Detailed Information and Suggestions document for more information and questions to ask. Click a resource for more information:
AARP is a nonprofit organization for people over the age of 50. The AARP Web site includes information on a number of financial and practical subjects, and you do not have to be an AARP member or over the age of 50 to access these articles. Information on creating a will includes a self-help guide, a glossary of legal terms and a worksheet to help you gather the information you need to create a will. You can also use the Web site to request help with finding affordable legal services. Some information on the site is available in Spanish. American Bar Association
The American Bar Association is a professional association for lawyers. The ABA Web site has information for the general public about a wide range of legal topics, including creating a will, tax planning, establishing trusts and other common legal issues. In addition to explanations of legal terms and processes, the site provides specific information about preparing legal documents such as wills and other advance directives. The site also includes information about finding a lawyer or legal aid service in your state, as well as what to do if you have a problem with a lawyer or want to manage a legal issue without a lawyer. Cancer Legal Resource Center (CLRC)
The Cancer Legal Resource Center (CLRC) provides information and resources on cancer-related legal issues to survivors, their families, friends, employers, health care professionals, and others coping with cancer. The CLRC offers information on a broad range of cancer-related legal issues, including health insurance, employment, government benefits, estate planning, advanced health care directives, family law and consumer assistance. Through a national toll-free Telephone Assistance Line (866-THE-CLRC), callers can receive information about relevant laws and resources for their particular situation. The CLRC volunteer panel of attorneys and other professionals provide more in-depth information and counsel to CLRC callers. All CLRC services are free and confidential. Services are available in both English and Spanish. Federal Citizen Information Center
The Federal Citizen Information Center offers hundreds of booklets and fact sheets on consumer issues and government services. You can view and print information from the Web site or you can request that information be mailed to you. Some mail order requests will carry a small fee. Topics include money management, saving for retirement, investing, Social Security, Medicare, credit, consumer protection laws and more. Some publications are available in Spanish and other languages. LIVESTRONG SurvivorCare Program
LIVESTRONG SurvivorCare offers assistance to all cancer survivors, including the person diagnosed, caregivers, family and friends. The program provides education, information about treatment options and new treatments in development, counseling services and assistance with financial, employment or insurance issues. To provide these services, LIVESTRONG SurvivorCare has partnered with several organizations, including CancerCare, Patient Advocate Foundation and EmergingMed. The LIVESTRONG Survivorship Notebook is a tool that can help you organize and guide your cancer experience. The portable, three-ring binder contains a variety of information covering a full range of physical, emotional and practical survivorship topics. You may order a free LIVESTRONG Survivorship Notebook at www.livestrong.org/notebook. Shipping and handling charges will apply. National Association of Financial and Estate Planning (NAFEP)
The National Association of Financial and Estate Planning (NAFEP) is a nonprofit organization that provides estate planning education programs and consultation. The Web site includes information about estate planning and transfer, taxes, heir planning, trusts and wills, as well as explanations of common problems that may be encountered during each of these processes. You can also locate a Certified Estate Advisor in your area. [return to top] |
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