When Should You Make a Will?
by Philip Ahn, Attorney
Making a will is not usually at the top of most people’s lists. This may be especially true if you are young, single, and don’t have children. However, a will is an important document that can come in handy for many people.
You should consider making a will as early as possible. This can be true even if you don’t have many assets. A will can be a great tool for ensuring that what you do have is passed down to the right people and your surviving children are taken care of by guardians that you hand select.
While there is some debate regarding who should make a will and when that should happen, there is no debate about the importance of having one for certain groups of people.
If you are unsure about whether or not you need a will, it can be helpful to conduct some independent research and assess your situation; then speak to an estate planning lawyer in your area.
What Does a Will Do?
A will is a legal document that details how you would like your property and assets distributed when you pass away. In addition, a will is one of the only legally recognized documents that allows you to select potential guardians to take care of your children should you die before they turn 18.
If you do not have a will, your property and assets will be distributed according to the laws of your state. While your spouse and children typically take priority (if you have either), this is not always the case and your property could end up in the hands of people that you would not choose.
Should I Make a Will if I Have Nothing?
It depends. If you have a negative net worth and do not own any assets worth distributing when you pass away, then making a will may not be necessary at the moment. However, if you have children, making a will can be beneficial regardless of your financial status.
When Do You Need a Will?
There is no one-size-fits-all age or point in time when it is recommended a person to write their will. It largely depends on your circumstances. In general, those who are married, have children, and have a positive net worth are encouraged to write a will. Learn more about each circumstance below.
When You Are Married
State law typically stipulates that your spouse receives half or a part of your assets upon your death regardless of whether you have a will in place. However, this is not always the case, especially if you have past marriages and/or children from those past relationships.
Writing a will can help to ensure that your wishes are documented and well known. In addition, it can help you to leave certain assets or property behind to people other than your spouse or children should you choose to do so.
When You Have Children
Aside from your spouse, children are one of the main considerations when making a will. While they are likely to be second in line to inherit your property after your spouse, this does not always happen. To help ensure that it does, it can be beneficial to put your desires in writing, so you leave no room for error or misjudgment.
In addition, if you don’t want your kids to inherit your property, that is also something that needs to be in writing. Since you likely have a preference one way or another, it is important to have a will in place so that you are in control of the decision, not the government.
A will is also important when you have children because you get to choose the executor of your estate as well as potential guardians for your children if you pass away before they are adults. The executor will be responsible for distributing your property to your children and the guardian you choose will be responsible for raising them (as long as they are capable and willing).
If You Have a Positive Net Worth
If you are not married and don’t have children, but have a positive net worth, then you should write a will. This is to eliminate confusion and fighting amongst your surviving family members. If your net worth is more than $100,000, then you may also want to consider setting up a trust.
How to Set Up a Will
Believe it or not, setting up a will is not as difficult as it sounds. It simply takes a little bit of time, some thought, and planning. Nonetheless, you should carefully follow a few steps and potentially have your will reviewed by an estate planning lawyer who you trust. Take a look at these steps to set up your will below.
Select Your Beneficiaries
When you pass away, someone will receive your property and assets. It’s only a matter of whether they are the people that you choose or individuals that are chosen by the state. While you will likely not have to think much about who you want to receive your property, it’s important to keep your list of beneficiaries up to date.
Choose the Executor for Your Will
The executor of your will is the person that will be tasked with carrying out your wishes and ensuring that your property is distributed as you like. You can choose a person, financial institution, or estate planning lawyer to be the executor. Each option has its benefits and drawbacks.
If you select a family member or close friend to be the executor, they should be someone that you trust and someone who understands your wishes. You should also be prepared to compensate them for being an executor since it can be a lot of work to be an executor of a will. It can also be helpful to name multiple executors in case your original executor is unable to fulfill their duty.
Pick a Guardian for Your Children
This is a function that is unique to a will. Trusts and other estate planning tools do not allow you to name guardians for your children, but a will does. Like with an executor, you should choose multiple guardians in case some are unable to fulfill their duties.
It can also be beneficial to choose guardians to take over guardianship in case the family you choose to take care of your children is incapacitated or passes away before your kids turn 18. If you do not make these important decisions before you die, they will be left up to a judge.
Be Specific and Realistic
When making a will, details are everything. Everyone will not read between the lines the same way. This can be especially true if you have children from multiple relationships or have other complicated matters that need to be addressed.
Additionally, you should be as realistic as possible. Even if you wish to fairly distribute your assets among your spouse, children, and other family members, it is not always an easy task.
Attach Additional Documentation
A will does not allow you to say everything that you want to say. While a personal letter is not recognized by the law, it can be a way to ensure that your intentions are clear. It can also be a method of saying goodbye in a way that you want. Additional documentation can help to make your goodbye personal and your wishes crystal clear.
Have Witnesses Sign Your Will
Every state requires you to have witnesses sign your will for it to be considered viable. It is important to note that the witnesses you choose can’t be people who stand to benefit from your will or inherit anything.
Witnesses also need to be over the age of 18. Most states require at least two witnesses while others require three. If your will is contested during the probate process, a judge may call your witnesses to testify.
Review and Regularly Update Your Will
As you age, your asset ownership, desires, and beneficiaries may change. It is imperative to continually update your will after major life events occur such as marriage, divorce, the birth of a child, etc. If you do not, heirs that you wish to receive certain assets may not and others that you don’t want to inherit certain property (i.e. an ex-spouse) may receive them.
How Much Does It Cost to Make a Will?
Making a will is not that expensive. You can make a will on your own for free (though this is not always recommended) or you can pay a lawyer a few hundred dollars to have one written for you.
It can become expensive if you have complicated finances, relationships, or distribution requests. In addition, a will is only the first part of a comprehensive estate plan. You may wish to have more control over how your assets are distributed, ensure privacy, or gain financial benefit from your estate plan, as well as limit tax liabilities, etc. These details could cost considerably more.
Do I Need a Lawyer to Create a Will?
Technically, no. You do not need a lawyer to write a will. This is especially true if you have limited assets, are single, or child-free. However, if your estate planning needs are more complex, it is in your best interest to consult with a lawyer. Not only can a lawyer help you to draft a legally sound will, but they can help in many other aspects of estate planning such as:
- Setting up a trust
- Avoiding probate and limiting estate taxes
- Drafting Power of Attorney and Healthcare Power of Attorney Documents
- Limiting tax liabilities
- Ensuring that your will and estate plan are within the law
- Executing your will
- Representing your estate if your will is challenged
If you are unsure if you need an estate planning lawyer, it can be helpful to take advantage of a free initial consultation to learn how or if a lawyer will benefit you and your estate planning needs.
Writing a simple will is not that expensive, but creating a comprehensive estate plan can be. Some lawyers charge thousands of dollars upfront plus additional hourly fees on top of that.
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