A common New Year’s resolution is to finally, finally, get your legal affairs in order. Part of that is having your will made. Getting your last will and testament will help you feel prepared, mature, and ready for what the future brings. It might also reek of the ashes of mortality, but let’s face it: we’re all going to die, and dying without a will is a big final mistake.
As you no doubt know, a will is a legal document that spells out your wishes for how your assets will be distributed after you die. It also allows you to select a guardian if you have minor children. A will should always be executed in writing, and you as the testator (person making the will) need to sign it for it to be valid. If you die without a will (which is called dying intestate), your assets will be distributed according to your state’s inheritance laws, and the allocation might not line up with your wishes.
Provisions of a will
Each state has its own requirements about the format of a will, but there are provisions that most wills should have. A will starts with a statement that establishes your testamentary capacity. This means you have the mental capacity and intent to create a legal will when you sign the document – the basic legal requirements for the testator’s frame of mind.
The body of the will sets out the distribution of assets. You can leave money, real property, personal items, investments, vehicles, and anything else you own to the people you choose. Those who receive the assets are called beneficiaries. The will can include bequests to charity as well.
Trusts and trustees
Your will can also set up one or more trusts, placing some assets aside for distribution at a future date. You will need to name a trustee, who will oversee investments in the trust and ensure that the proceeds are distributed in accordance with your wishes.
If you have minor children, the will can be used to choose a guardian for them. You’ll want to select someone who has a good relationship with your children and whom you can trust to raise them as you would. You should also name an alternate guardian, in case the first is not available or dies before you.
The will also must name an executor. The executor will carry out the instructions in the will and make sure it moves through the probate system. The executor should be someone you trust and who is willing to take on the job. It is also wise to name an alternate executor in case your primary executor is unwilling or unable to perform the duties or dies before you do.
Things not to include in your will
In general, it’s not a good idea to include burial instructions or your wish to donate organs in your will. By the time the will is located, those decisions likely will have been made already.
Signing and witnessing
When a will is signed and witnessed, this is called executing the will. You as the testator must sign the will, and you should do so before two witnesses. Those witnesses should not be heirs or beneficiaries, and you should take a moment to chat with them, so they can attest that you are of sound mind. The witnesses sign the will, acknowledging they saw you sign it. For added protection, most attorneys have those witnesses sign self-proving affidavits, so that the witnesses need not appear in probate court to testify that they saw the will being properly signed.
How do I get a will made?
Anyone of legal age and sound mind can create a will. Assuming you meet those criteria, you
can write a will yourself. But because of the technical requirements involving probate law, estate or inheritance taxes, witnesses, and trusts, it’s a good idea to work with an attorney who can ensure that all the legal boxes are checked.
Creating your will with an experienced lawyer gives you peace of mind that you’ve made important decisions and created a legally sound plan to care for those you love.