June 23, 2020

Writing a will isn’t usually a pleasant, upbeat task. You aren’t just coming to terms with your eventual death, but you are actively planning for it. Many adults are so thrown by the idea that they avoid this piece of estate planning. But creating a will is critical, and important for your family. Ideally, you should have a will in early adulthood.

1. Why a Will is Necessary

If you die without a will, your estate will be handled entirely by the courts. A judge will appoint an administrator and they will make decisions completely independent of your heirs. Probate without a will can be long and expensive, and you will not be able to have any of your wishes acknowledged.

2. How Spouses Should Handle a Will

Most estate planners and will and trust attorneys advise against joint wills. It’s unlikely you and your spouse will die at the same moment. Separate wills make much more sense, even if they are similar to each other. Probate law generally favors the surviving spouse.

3. How to Choose an Executor

You can name your spouse, an adult child, or another friend or relative. If your estate is complicated, you may want to name an attorney or financial expert. It is also possible to name joint executors (for example, your spouse and an attorney), if you want to assure both the personal connection and the knowledge of an expert. Your executor will have a big responsibility in going through your estate, so you want to choose someone who is capable and detail oriented.

4. How to Leave Specific Items to Specific People

You can indicate specific bequests in your will. You can also include a letter of instruction which specifies in detail which items you’d like to see go to which people. A letter of instruction isn’t always legally binding, and can be written much more informally and explicitly, where you state your reasoning. If kept with a will, the letter of instruction is usually followed by the executor.

5. How Often a Will Should Be Updated

It’s a good idea to update your will at the times of major life changes. The birth of a child, death of a beneficiary or executor, a significant asset or inheritance, or a change in marital status. Reviewing your will every few years is typically a smart idea, even if changes aren’t necessary.

6. How to Name a Guardian for Minor Children

No parent wants to think about having to name a guardian, but it’s an important thing to specify. Without naming a guardian, the court will make the decision and you will lose all control. When one parent dies, the surviving parent will typically get custody. But there are occasions where the other parent is unfit, or both parents die. In this case, you’ll want to name a guardian who your child has a good relationship with, and who is stable and able to care for your child. It is crucial to discuss this decision with potential guardians before naming them in your will.

7. If a Will and Trust Attorney is Necessary

While you can certainly write a will that fits the legal requirements on your own, and there are DIY kits available, having a will and trust attorney by your side while creating your estate plan is a smart decision. Most likely, your will and trust attorney will guide you through more of your estate planning documents (such a trust, a living will, or power of attorney), allowing you to create a full estate plan.

You need to be of “sound mind” when you write your will, meaning that you understand what you are doing and what you are working with. Writing your will sooner rather than later can help assure that you won’t be too late. Speaking with a will and trust attorney to help you get started with estate planning is a good first step. If you have questions about your estate plan, or are interested in getting started with your estate plan, contact my office today.