Wills

Less than half of Americans have a will that details how they would like their money and estate handled after their death, giving new meaning to the idiom “against their will.”

You don’t need wealth to benefit from a will. Wills make it faster and easier for your beneficiaries to receive their inheritance and for sticky issues, like care of minor children, to be resolved quickly.

A basic, simple last will and testament is an important legal document that expresses your wishes for managing and distributing your estate after your death, plus instructions for the care of any dependents. It specifies your beneficiaries (the folks who will inherit your assets) and designates an executor to manage the probate process. Creating a basic, simple last will and testament ensures a smooth estate transition and helps reduce the chance of any familial disputes (which is the last thing you need when dealing with the death of a loved one).

An “estate” sounds fancy, but it simply refers to the collection of property, assets, and possessions that belong to you at the time of death, as well as any debts. This could include bank, retirement and investment accounts, real estate, jewelry, vehicles, and even business or corporations owned by you. In essence, a basic, simple last will and testament provides a clear roadmap for how your estate, however large or small, should be handled according to your specific desires.

There are four main types of wills: simple wills, joint wills, living wills, and testamentary trusts.

Simple Wills: The Foundation of Estate Planning

A simple will is the most common form of a last will and testament. It primarily does four things:

• Outlines the distribution of your estate
• Names an executor or trustee to manage the process
• Designates beneficiaries (also called heirs)
• Appoints a guardian for dependents

This type of will is a good starting point for basic estate planning and covers the main bases that need covering in a last will and testament.

Joint Wills: Simplifying Inheritance for Couples

A joint will is a single document created by two individuals, typically spouses, where they name each other as the sole beneficiary. This type of will ensures that assets pass directly to the surviving partner should the other pass away.

Testamentary Trusts: Controlled Asset Distribution

A testamentary trust is a trust that’s created by a will and takes effect after the owner’s death. It allows for the creator to decide how and when assets are distributed. This can be useful if you want to ensure funds are used for a specific thing (such as for a college education or the purchase of a house) or at a certain time (like a dependent not receiving their inheritance until they turn 18). A designated trustee manages the trust, ensuring assets are distributed according to the will’s instructions.

Living Wills: Planning for Medical Decisions

A living will focuses on medical preferences while an individual is still alive, but unable to make decisions (like in a coma). It designates a healthcare proxy or power of attorney, which is someone who can make medical decisions. It also outlines the types of medical treatment you do or do not want to receive.

There are other, less common types of wills, such as oral wills (also called nuncupative wills), or holographic wills. But depending on state laws, these types of wills may not hold up in court.

A valid will requires 3 things. It must…

• Have been made when the owner was at least 18 and of sound mind
• Be in writing and signed by the owner (or someone else at their direction) and at least 2 witnesses
• Be notarized

If a person dies with a valid will in place, the next step is a legal process called probate. Probate refers to the legal process where a court validates a will, settles any remaining debt, and distributes the remaining assets to beneficiaries.

Probate court is responsible for overseeing wills, trusts, estates, and related matters. The executor or a beneficiary of a will files it with the probate court in the county of your death or last residence. If an attorney assisted in creating your estate planning documents, it may already be filed for safekeeping.

When a will is filed, it includes a request to approve the will and put everything into effect. Probate court verifies that the will was properly signed and witnessed, adhering to state laws, and provides legal notice to beneficiaries, allowing them the opportunity to contest the document. The court also conducts an inventory of the deceased's estate, valuing all assets and debts. If outstanding debts exist at the time of death, creditors are notified to file claims against the estate. These debts, bills, and taxes are settled before the remaining assets are distributed as outlined in the will.

If you owe debts when you die, creditors are notified so they can file claims against the estate. Any debts, bills, and taxes are paid before the remaining assets are distributed according to the will.

The duration of probate is often influenced by the estate's value; larger estates typically require a more extended process. Similarly, estates with significant outstanding bills and debts can also prolong probate. Generally, probate and asset distribution are completed within 8-12 months from the filing date.

If you die without a last will and testament, it's considered dying intestate. Without explicit directions, it falls to the probate court to figure out how to disperse the deceased's assets.

These decisions are guided by the state's established intestate succession process, which dictates the percentage of the deceased's estate that a spouse and/or children receive. In most states, the estate transfer defaults to your spouse, or if single, to your children or parents. If you've had multiple marriages or children from various relationships, dividing property becomes significantly more complex.

Joint accounts or accounts with designated beneficiaries (including retirement accounts) can transfer without having to go through the probate process. Similarly, joint real estate with a spouse automatically transfers to the surviving spouse.

Accounts solely in your name must go through probate before transferring to a spouse or children. It’ll ultimately be up to the court to decide who gets what assets. In the absence of relatives, your estate is escheated, or turned over to the state where you live.

A will is a legal document that dictates how your assets are distributed after your death (after going through probate court). A trust, on the other hand, is a legal arrangement where you transfer assets to a trustee, who manages them for your beneficiaries (which doesn’t need to involve probate court). Essentially, a will goes into action after death, whereas a trust can be active during your lifetime and beyond.

An executor of a will is the person designated to manage the deceased's estate throughout the entire probate process. Their responsibilities include locating and filing the will, inventorying assets, paying off debts and taxes, and distributing the remaining property to the beneficiaries as directed in the will. In short, the executor makes sure that the will gets carried out exactly how the deceased intended.

There are two ways to change a will: creating a new will altogether, or amending the current will with a codicil. A codicil is a legal supplement to a will. A codicil is best for minor adjustments to your will. If you’re making sweeping changes, revoking the old will and creating a new one is the right approach.

Carefully consider who you want to name as a beneficiary in your will. Keep in mind that you can’t disinherit a spouse you are legally married to unless you have a pre- or post-nuptial agreement. Some state laws ensure your partner gets their fair share of property, and these can overrule your wishes to the contrary.

If you’re leaving someone out of your will—say one of your children—it’s best to specifically include that in the will, rather than simply not mentioning them. Depending on the state, children who aren’t named may still be entitled to their share of the inheritance. In Louisiana, disinheriting your children is illegal.

Specify in the will if your heir’s heirs inherit their share of your estate, should your heir die before you. For instance, if your son dies before you do, do you want his wife to inherit?

Keep in mind that you cannot tie inheritance to conditions that go against public policy, like limiting inheritance if someone marries a person of a certain age, religion, or race, gets divorced, or joins or leaves a specific religion.

A will can be as straightforward or complicated as you like. There are kits and templates available online if you want to try creating a will on your own. Even if you create a will yourself, consider scheduling an appointment with a lawyer to double-check that it will make it through probate. Or you can hire a lawyer to guide you through the entire process. Remember, even a simple will is better than no will.