While specific laws may differ, there are some general issues to consider when making a will.
It might be hard to believe, but more than half of all Americans who own property die without a will. This is unfortunate as wills are a relatively simple way to distribute property, reduce the cost and time it takes to settle an estate, reduce possible conflicts among heirs, and designate a guardian for any dependents.
In general, every individual should have his or her own will and mutual or joint wills should be avoided. If you and your spouse are planning to leave everything to each other, for example, individual reciprocal wills allow greater flexibility than joint wills while accomplishing the same purpose. Further, because it isn’t possible to predict death in most cases, it’s important for anyone with property to make a will, regardless of his or her age.
If you or a loved one is considering making a will, there are a few steps to take before visiting a lawyer.
- Make a list of questions to ask
- Make a list of important family information including the names, addresses, and relationships of all individuals who will be included in the will, as well as the names of any children or grandchildren who will be left out of the will.
- Decide on alternate beneficiaries in case the primary beneficiary (often a spouse) dies before or at the same time as the person making the will. Add these individuals’ names and addresses to the list.
- Decide on an executor of the estate. Also, decide on an alternate individual for this position. Add these individuals’ names and addresses to the list.
- Decide who should serve as the guardian for any children or other dependents. Add these individuals’ names and addresses to the list.
- Cost-out the estate in terms of dollars and percentages and show both to the lawyer.
- Decide if there is any special property that should be bequeathed to a certain beneficiary. Special wishes for tangible items can be written into a list, but the will must reference this list.
- Make necessary changes to the names listed on life insurance policies, annuities, and retirement accounts.
- Take an income statement from the past few years to show the lawyer.
- Estimate the value of your estate so the lawyer can decide whether tax planning will be necessary. Make a note regarding any out-of-state property, property held separately by either spouse, and property held in joint tenancy.
When evaluating property, be sure to consider the following:
- Real property, including both land and fixed and permanent improvements on the land
- Personal property, including automobiles, checking accounts, stocks, furniture, jewelry, machinery, or tools
- Separate property, including property acquired before marriage, by gift or inheritance to one spouse during marriage, by written contract between spouses, and by court order
After you or your loved one gathers the above information, you should probably consult with a lawyer. Although many states do not require a lawyer to write a will, wills must contain precise wording to assure that a person’s wishes will be completely followed, so it’s best to have a lawyer draw up the papers.
Additionally, a lawyer can:
- Provide expert knowledge of any legal requirements
- Prepare an itemized list of real and personal property and assets
- Use his or her knowledge of the law to benefit the heirs
- Suggest the inclusion or exclusion of provisions
Whereas lawyers can help plan a legally binding, well-written will, some things cannot be written into a will. In a will you can not:
- Avoid probate
- Bequeath the family Bible and other books, automobile, your own wearing apparel, and all household electrical appliances, instruments, furniture, and utensils to anyone other than a spouse or unmarried children
- Completely disinherit a spouse
- Leave funeral instructions
- Leave joint property to anyone other than the surviving joint tenant(s)
- Leave money for an illegal purpose
- Leave money in a payable-on-death bank account
- Leave money to pets
- Leave property from a life insurance policy, pension plan, individual retirement account, or living trust where a beneficiary is already named
- Make provisions for the long-term care of a loved one
- Place contingencies on a gift by attempting to control a recipient’s fundamental rights, such as marriage, divorce, or change of religion. Contingencies can be placed on lesser rights such as going to school.
- Reduce estate taxes
Once a will has been drawn up, make sure that the lawyer, executor, and trusted family members know where to find copies. In general, you or your loved one can make a new will by drawing up a will that specifically revokes the old will, and destroying all of the copies of the old will. In addition, you can change an existing will by writing a codicil, which is a separate document that changes the conditions of the existing will or adds new provisions. It’s a good idea to review and make necessary changes to a will any time that circumstances—family, financial, or state or federal laws—change.
By taking these few steps, you or your loved one will help ensure that property is distributed as you would like it to be. You will also lower the estate settlement costs that occur when an individual dies without a will, as well as lessen the emotional strain on any surviving loved ones.
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