Estate Planning: Why a Will is Essential & How to Create One

Most of us feel as though we will live forever. It seems inconceivable to think that death could be right around the corner. Even the death of your spouse seems more realistic than your own death. However, the reality is that you never know when something unfortunate will happen to take you away from your family. You need to be prepared for that reality—for the sake of your loved ones.

If you don’t make arrangements, though, your assets will be divvied up according to state law. That unfortunate reality is why you need a will. You might be surprised to learn that in some state, spouses don’t automatically get everything. There are states that give your spouse some of your assets, and then divide the rest between kids.

In some states, a spouse might have to share with parents, and distant blood relatives of the deceased when there is no clear direction for your assets. Things get even more complicated if you’ve had more than one marriage, and children from each of your marriages. If your estate has to go to probate, that can reduce the value of your estate, since it usually means more court costs and fees.

A will can make your wishes known, and help your family make a better financial transition after your passing. You can avoid some of the fees associated with having the state decide everything, and you can feel comfortable knowing that your estate is divided up as you wish. Your will is the most basic of estate planning documents, and it is something that you definitely should have, since it will designate who cares for your children, as well as where your money goes.

Are You One of Those without a Will?

Too many young families do not have wills.  Actually, too many families in general do not have wills. According to the recent “State of Wills” survey released by legal web site Nolo, nearly half of those surveyed don’t have wills. On top of that, women are lagging behind when it comes to will creation. The Nolo survey indicates that about two-thirds of men have wills, while only slightly more than one-third of female respondents have wills.

Common reasons why young families don’t prepare wills:

• People hate thinking about death. They’d rather focus on the positive aspects of life.
• Death happens to old people, so most people delay preparing a will until they are older.
• Making a will forces people to address their own mortality and some are not emotionally prepared to face the possibility of death.
• Some people think they don’t have enough money to make a will.
• Preparing a will is too complicated.

Some of these issues are psychological; others are financial.  I’ll help you with some of the financial parts and let you work through the psychological parts on your own.

Let me assure you, preparing a will is not complicated, and a will does a lot more than split up your money.  A will also tells the courts who you want raising your kids.

Remember: A will is one of the most loving acts a young father and mother can do.  In the case of an untimely death, you will leave your family with some direction and assistance.

Creating a Will

The will is the most basic declarations of what you want to have happen to your assets. In order to create a valid will, the following conditions must be met:

• You must be of legal age in your jurisdiction (usually 18)
• You must demonstrate that you are of sound mind and judgment
• There must be an intent that the document be your last will and testament
• Signing the will must be voluntary—you can’t be under duress
• You should write the will (or have it written for you), and it needs to be witnessed by at least two other parties
• It helps to designated an executor who can make sure the terms of the will are met
• Date your will; if you write a new one, indicate that the more recent will replaces the old will in its entirety

Your will should then offer details of what you want done with your property, and where you want your assets to go. Your will can also indicate who should be guardian of your children (ask that person first) if your partner is deceased as well. Realize, though, that you need to update your beneficiaries to match your will. In some cases, what’s in your will can be superseded, as in the case when what’s on a beneficiary form (for life insurance, or a retirement account) doesn’t match up to your will.

It’s actually possible to create a will on your own, as long as the above conditions are met. If you do make it on your own, it can help to have the signatures notarized to make it more “official.” To ease the process, there are legal web sites, like Legal Zoom, that provide you with templates that you can use to create a will fairly quickly and easily. For a reasonable fee, you have your will created on your behalf.

However, many people are more comfortable hiring a lawyer. If you want help as you plan your estate, and you need advice on how to dispose of your property, a knowledgeable estate planning attorney can be a good option. A lawyer costs more, but you might have greater peace of mind. You know that everything will be done according to the law, and you can ask questions about your specific situation and get solid answers about what to expect, and what to do.

Updating Your Will

Don’t forget to update your will. Even if you have already made a will, make it a point to resolve to update your will in the coming year, particularly if you have had a major life event. The Nolo survey points out that about one in five respondents have had a major life event since the last update of a will. Major life events that might influence your will include:

• Marriage
• Divorce
• Death of a loved one
• Birth of a child (learn more about considerations for your children’s guardians).

These are events that change who your heirs might be, as well as how you might want to dispose of your estate. (On a related note, check your beneficiary information after a major life event. Changing your will won’t change your retirement account or life insurance beneficiary information. Do you want your ex getting your life insurance payout if you die?)

When you already have a will, it makes sense to reflect on it each year. Read through it and make sure that it still expresses your preferences, and then make any necessary changes.

3 Factors to Consider When Drafting Your Will

The following 3 questions should be at the forefront of your estate planning, especially if you have children.

What will happen to your estate?

You will need to decide who gets your possessions and when they can access your estate.

In the case of smaller estates, it is not uncustomary to allow the guardians to use your estate to help pay the cost for raising your kids. See this related article regarding how much money to leave your children’s guardians in your will.

If you have a larger estate you will also need to decide when and how your kids will receive their share of the estate.  It is recommended that you state your wishes using specific ages and percentages.  For example, when Little Johnny turns 18 he has access to 50% of his inheritance and to the other 50% when he turns 21.

When you have additional children you will want to be sure to update your will.

Who will be the executor?

The executor may be the same as the guardian.  This could be a good idea if the estate is smaller.  It will make things simpler for the guardian/executor.

For most families, a family member or personal friend could serve as the executor.  Look for someone who is trustworthy, has a solid financial foundation, loves details, and is financially organized.

Once again, it is suggested that you confirm that the person is willing to serve as the executor.

With larger estates you may consider a paid professional to serve as the executor.

Who will you designate as the guardian of your children?

The guardian is the person who would have custody over your children if both of the parents passed away.  If you do not prepare a will or designate a guardian, then by default, you’re giving the court permission to choose a guardian for your children if you and your spouse pass away.

The person you designate as the guardian should be someone who shares your family values and who you know loves your children.

Important: Be sure to ask potential guardians if they are willing.  Guardianship is voluntary, so the courts will not require them to keep your children.  For this reason you need to know that potential guardians are willing.

Everyone Should Have a Will

No matter how you go about it, creating a will is an important part of preparing your family for your passing.

Your will can be one of the ways that you smoothly transfer assets to your heirs, make your intentions known, and provide for your loved ones. The creation of a will can let others know what your intentions are, and legally ensure that your wishes are carried out. While a will won’t solve all your estate planning issues, it’s a good start.