What Should You Put in a Will?
by Unbundled Legal HelpJune 2nd, 2021
Creating your “Last-Will-and-Testament” isn’t the most glamorous task. However, doing so can be beneficial for you, your children, and your loved ones. With this in mind, it’s important to know what you should put in a will and why having one is important.
Everyone’s “Last-Will-and-Testament” is different. In general, when making your will, you should include the following instructions:
How You Want Your Assets Distributed
The Executor and Their Rights
It is recommended that everyone create a will. It offers you the ability to leave behind certain assets, designate guardians for children, and have some control over how your estate is handled after you pass away.
You can create a will on your own. However, if you have a large estate, want to set certain conditions on asset disbursement, or are unsure of how to protect your interests, then it is recommended that you first consult with an estate planning lawyer.
Learn more about what you should put in a will below.
What is a Will?
Before discussing what goes into a will, it’s important to have a clear understanding of what a will is and what it does. A will is a legally recognized document. It details your wishes regarding the guardianship of your children and asset distribution when you die. Without a will, those decisions will likely be made by a judge.
While a will is the cornerstone of a strong estate plan, it is not the entirety of it. Those with larger estates often create a trust in addition to a will. It’s important to note that wills are only effective when they give clear instructions regarding your legally owned property.
What to Include in Your Will
What you should include in your will varies depending on your circumstances. There are many types of wills. Examples include:
Holographic Will (not valid in all states)
Regardless of the kind of will you create, it should include the following information.
If you have children, this is likely a major motivation to create a will and a comprehensive estate plan. A will is one of the best methods there is to ensure that your children are taken care of should you pass away before them.
Not only does a will allow you to name a guardian you can also appoint someone to manage your children’s inheritance until they are of age. When choosing a guardian, you do not need their permission when writing them into your will.
However, it’s best to have a conversation with them to be sure they are prepared for the responsibility. Additionally, it can be helpful to name multiple guardians, in case your first choice is not able to take on the role.
An easy way to get started on your will is to begin listing all of your significant assets. If you’re married, each spouse makes their own will. Once you have compiled a list, you will need to decide what property you can place in your will. Examples include:
Stocks and Bonds
Certain types of assets are not allowed in a will and other types would serve you better in a trust. Discuss your needs with an estate planning lawyer if you are unsure.
How You Want Your Assets Distributed
This can sometimes be a tricky subject. Especially if you have step-children, children from past marriages, and/or non-family members you would like to leave assets to. A will does not give you as much control over asset distribution as a trust does, but it is still an effective method for taking care of your family.
When writing your will, give precise, detailed instructions. For instance, if you are leaving behind a valuable painting to your grandchild, you should note the details of the painting such as who the artist is, etc.
The Executor and Their Rights
The executor of your will is the person that carries out the wishes written in your will upon your death. It is important to choose a responsible executor that you trust. Within your will, you can describe the rights and duties of your executor. Executors take care of many things, that include:
Managing Digital Assets
Paying Your Mortgage, Loan Payments, etc.
Property such as homes and buildings can be placed in a will. However, a will is not designed for all types of assets. Depending on the worth of your assets and how complex they are, your estate lawyer may recommend a trust in addition to your will.
What Should You Not Include in Your Will?
Many types of assets and properties should be placed in a will. Some types of assets are not allowed in a will or would serve you better in a trust. Creating a will that includes property not legally allowed can lead to probate challenges. Such errors could ultimately result in a judge making final decisions about how your assets are distributed.
Certain Types of Property
Most types of assets can be placed in a will. However, many cannot. Types of property that can’t be in your will include:
Joint tenancy property
Property that is already in a living trust
Life insurance proceeds that are attached to a beneficiary
Proceeds from a “payable-on-death” bank account
More Things to Avoid When Making a Will
Many people leave detailed instructions and/or requests in their will. For some things, this is good. For others, it can cause confusion. For instance, it is not recommended to leave funeral instructions in your will. This is because estate matters are typically settled after the funeral.
When making your will, know what conditions you can place on gifts and what conditions are not allowed. In addition, avoid leaving gifts for illegal purposes or your pets. Lastly, if you wish to arrange care for a special needs person, a will may not be the best place to do so. A special needs trust or something similar may fit your needs better.
Discuss your estate planning needs with your lawyer if you are not sure about what you can place in your will and what you can’t.
What is the Difference Between a Will and a Trust?
Both a will and a trust can be used to pass wealth to the next generation when you die, but that’s where the similarities end. A will goes into effect when you pass away. A trust takes effect as soon as it is created. Additionally, assets placed in a trust become the property of the trust and are taxed as such.
Trusts are not subjected to probate and provide many tax benefits. This is why they are heavily scrutinized by the IRS. People create trusts to save themselves and their heirs both money and headaches. They also allow greater control over how your assets are distributed and what conditions you place on them.
In general, a will can do things that a trust can’t do. Also, your trust can do things a will can’t do. A trust is not always required, but experts recommend that you at least have a will. It is typically a necessary part of every comprehensive estate plan.
What Should I Put in My Living Will?
A “Last Will-and-Testament” alongside a living will sound like the same thing, but they are not. A living will is a written legal instruction regarding medical care and end-of-life decisions if you are unable to make those decisions yourself. In a living will, you can designate a health care power of attorney to make important decisions on your behalf should you become incapacitated.
Additionally, in many states, the power of attorney named in a living trust can gain access to your medical records. Other states require additional paperwork. You should address relevant end-of-life decisions in your living will such as when/if to resuscitate, tube feeding, organ donations, comfort (palliative) care, etc.
Do I Need a Lawyer to Write a Will?
If your assets are relatively modest and you have a simple plan for leaving them behind, then writing a will on your own is not a difficult task. While it is typically recommended that you at least have an estate planning lawyer to review your will, you can certainly write one on your own.
If you are unsure about what to put in your will, or how to distribute your assets, and want to be sure of the tax and legal implications, especially if you have large assets, then hiring a lawyer may be in your best interest. Estate planning lawyers provide many benefits when creating a will, some of the most common include:
Ensure your documents comply with the laws
Advise you of your options
Update your will and make changes when necessary
Strong will that can stand up to potential probate challenges
Legal advice regarding asset titling and beneficiaries
Professionally drafted and revised documents
Many people do not hire an estate planning lawyer to help with their will or estate planning needs because of costs. In many cases, lawyers charge thousands of dollars in upfront fees and additional hourly rates to write a will and create a comprehensive estate plan.
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