EOL Guide: Wills

Let's start with the obvious: planning for dying can be unnerving. Many of us meet the unsettling feelings that come with writing a will with avoidance, or we plan to do it at another (unidentified) time. 

The more clearly laid out the steps are for any process, the easier completing the task becomes. Because of this, we've distilled the components of will-making for you.

Part 1: What is a will, anyway? 

A will is a legal document that provides direction to your family after you die.

A will, also called a last will and testament, includes:

1) who will oversee your estate after you die (also known as an executor or personal representative),

2) who will become the legal guardian(s) of your children, if under the age of under 18,

3) who will care for your pets, and

4) how your assets and belongings will be distributed.

After death, the will executor or personal representative (PR) takes your will to a county court, often referred to as “probate." Probate is the process through which the will is deemed valid, allowing your wishes to be officially carried out.

The PR communicates with all banks, insurance agencies, death care companies, beneficiaries, etc., while the probate court oversees the process. If no PR is assigned within a will, a probate judge will choose one.

It is important that the person you name as PR:

• Knows that they will have this responsibility when you die.

• Knows exactly where to find your will.

• Has your implicit trust. They will be solely responsible for making sure that your end-of-life wishes are honored.

• Can handle a considerable amount of paperwork and logistics, without becoming overwhelmed.

Consider that the person will be grieving your absence. Talk with them now and make sure they are fully onboard with the assignment.

How do I make a will?

With online software, you can create a will from your sofa, or you can choose the more traditional route and tap an estate planning attorney to support you in the process and execution.

Countless do-it-yourself will-making software options exist and can be found through a quick internet search. Nolo Willmaker and Trust and Will are both straight forward and user-friendly options.

While handwritten wills are legally valid in some states (check your state laws before going with this option), the risk with doing it yourself lies in the possibility that, no matter how clear it may seem to you, you could use language that leaves your will open for interpretation, or out of compliance with state laws.

In most states, a will is valid if the testator (or person creating the will) is of sound mind, signs the will, and has two people sign the document affirming they witnessed the testator sign it without being unduly influenced. Witnesses cannot be related to the family or have an interest in the will.

While all wills are different, most include:

• Your name and a declaration that the document is your last will and testament

• The county and state where you reside

• A statement of family that identifies your spouse, children, and deceased children

• Any taxes or debts and how you plan to pay them

• Guardianship of children and pets

• Specific description of any assets you have and how you want them distributed (with specificity as to whom you're declaring a beneficiary and of what)

• Alternative beneficiaries, in the event one of your beneficiaries dies before or with you

• Identification of an executor or personal representative

• The name of a trustee if you plan to leave a trust

• Your signature, with date, along with two witness’s signatures

What happens if I don't have a will when I die?

To die without a will is to die "intestate." Your assets will be distributed according to your state’s intestate succession laws.

If you're a parent to minor children, the thought of dying while your children are young can be unbearable, inspiring procrastination on the will front. Most agree, however, that leaving the decision of who will care for your children after you die in the hands of a judge is far more unbearable. If you die without a will, a judge decides who steps in as your children's legal guardian. In most cases, a judge will choose a parent or sibling of the deceased.

Even if you do not have children, those who die in intestate may have their assets locked. Asset allocation will then be handled by a probate court, which can be a drawn out process. The court will refer to its state's intestate laws to determine who inherits your property, belongings, children, and pets. Each state has its own laws. For survivors, this legal stipulation can significantly complicate and amplify the grieving process.

So, for the love of your loved ones, create your will now.

How do I write my will so that it stands the test of time?

While wills never expire, components of them can of course become outdated. It’s helpful to stay aware and make updates as necessity arises. For example, one or more beneficiaries or guardians for your child could die before you, you could possess less assets, or acquire more than when you created the will. If these updates are left unaddressed at the time of your death, your state’s intestate laws will determine the outcome for distribution.

If you want to safeguard your will from being contested, you might include a no contest clause and video record the signing of your will. Talking to the beneficiaries while you’re still alive to explain your decisions can eliminate years of emotional pain and confusion.

What if my family and I disagree about a will?

The death of a loved one can surface family grievances like nothing else. Humans are complicated creatures, especially when they’re experiencing emotional pain. If you and your family disagree about a will and someone wants to contest it, valid grounds are required. Dissatisfaction is not enough.

All states agree on four primary avenues to contest:

• The testator must be of sound mind or “testamentary capacity”.

What determines testamentary capacity varies from state to state. It is not a given that just because grandpa was showing signs of dementia that he was unable to understand what he was doing in writing or changing his will.

• The testator cannot be unduly influenced.

Undue influence occurs when a person influences the testator to create or change the will to benefit the influencer. A relationship of trust exists, and unfair persuasion is involved. Methods of influence may include withholding physical affection, emotional or physical abuse, threats, or mental pressure.

As we age, our physical and mental states become more vulnerable. Many undue influence issues center around the elderly being coerced in the context of their vulnerabilities.

• The will was procured by fraud.

This one can also fall under undue influence and testamentary capacity but is its own animal. An example of fraud here would be someone tricking the testator into signing a document they believe to be something it’s not, like insurance forms or a power of attorney.

• Improper preparation or execution.

This is the most common cause for a will to be revoked. Laws vary state to state on what is required for validity. Failing to draft and sign a will in accordance with state laws is often the easiest provable path to invalidate it.

The Most Important Part

Do it now. We all think we have more time. 

···

Image credit: Romain Dancre via Unsplash