Making a Will

When the American pop star Prince died in April 2016, fans across the world mourned his unexpected passing with tributes and memorials.

His music will never die, but Prince’s legacy lives on for another reason: as a financial cautionary tale. That’s because the 57-year-old celebrity died without a will. To complicate things, Prince was divorced, childless and preceded in death by both parents.

It ended up taking more than six years before his estate was finally settled in August 2022. According to Rolling Stone, the legal proceedings took so long that two of Prince’s potential heirs died before a settlement could be reached.

Just like the legendary musician, many Americans also lack a will. 

However, according to Caring.com’s 2024 Wills and Estate Planning Study, a significant portion of the American population, comprising 40%, express that they lack sufficient assets to leave behind, in contrast to the 33% reported in 2022, marking a notable 21% rise.

Whether you’re a high-profile pop star or an ordinary citizen, it’s important to write down where you want your assets to go after you die. It may not be pleasant to think about, but a little planning now can save your survivors time and money later. Ultimately, a will and estate plan does not truly benefit you, it benefits your heirs who will have concrete instructions on how to distribute your assets. Getting the process started may be easier than you think.

What Is a Will?

A will ensures that everything you’ve worked hard to attain is distributed the way you want after you pass away. Creating one is part of the estate planning process and should include a list of your chosen benefactors and appoint guardians for minor children or other dependents who require special care.

Each will must undergo a legal process known as probate. This judicial proceeding proves the validity of a will and can last months or even years. One of the main goals of a good estate plan is avoiding probate, which we will discuss throughout this piece. 

All wills contain basic components. These simple elements guide your assets to the right people after you pass away.

Components of a Will

Executor 

This person or persons are appointed to oversee your estate as it travels through probate. This role has broad authority, so appoint a trustworthy, detail-oriented person.

Guardianship for Your Minor Children

Without a will, a judge will be forced to choose guardians for your children and determine who raises them. Leaving your child’s care up to the court may be a parent’s worst nightmare. Luckily, within a will, you can make your preferred selection known, if the other biological parent cannot serve.

Beneficiaries

The people or nonprofit organizations who will receive your assets after you pass away are your beneficiaries. Make sure to include specific language if you wish to leave items to any other beneficiaries who are not family members.

Different forms may be required to create a will depending on where you live. A form may need to be signed by at least one or two witnesses, and some states require a notarized signature.  

You can look up your state’s specific last will and testament laws on the state’s website.  

Do I Need a Will? And What Happens if I Die Without One?

You may not need a will but creating one is beneficial for organizing your possessions and assets after your death. This decision depends upon your family makeup, priorities and assets. 

Listing someone as a beneficiary on your life insurance or retirement account and marking your bank account payable-on-death to one or multiple individuals might be enough to ensure that your assets are properly distributed. These assets would pass to the individual(s) outside of the probate process and these elections supersede a will in the event of a discrepancy.

Life is often complex, and assets like real estate or business interests may not always transfer automatically outside of probate. Wills are not exclusive to the wealthy. Creating a will, even without many assets, will still provide you with the opportunity to decide who will get your most meaningful possessions. 

Perhaps you have a collection of artworks from your travels that you want to give to a certain relative. Whatever it may be, you can designate the recipient rather than the court.  

Second, marriages, blended families, vacation homes, unmarried partners and estranged relatives are just some of the specific circumstances that can cause confusion and hardship for your survivors if you don’t establish a will.

In the event of intestacy — dying without a will — state law dictates the distribution of your assets and determines the beneficiaries. The executor of your estate might be the first to petition the court or the individual with the means to retain legal representation. This situation can lead to contention within families during the probate process, especially when members have differing viewpoints.

Wills are essential for parents of minors. If you don’t have a will, a judge will designate a guardian. If one parent dies, usually the surviving parent gets custody. However, things can get tricky if both parents pass away or the other parent is deemed unfit or is estranged from the family.

Things To Consider When Creating Your Will

Your “estate” is the legal term for everything you own — and it may be more than you realize. That’s why it’s important to take stock of your assets. You will need to estimate the value of large items, so it’s beneficial to include a recent property appraisal of your home and other real property.

Types of Estate Assets

• Investments (stocks, bonds, CDs)
• Real estate
• Vehicles
• 401(k)s and IRAs
• Annuities
• Business assets
• Jewelry, furniture, books, family heirlooms and other objects

In a modern era, you should also consider digital assets. These can include online bank and stock portfolio accounts, as well as domain names and money-generating social media accounts.

Assets add value to your estate. Debts, in contrast, detract from it. You’ll need a record of these, too.

Types of Debt To Consider

• Credit cards
• Mortgages
• Equity loans
• Car loans
• Student loans
• Outstanding medical bills

You must determine if you have enough cash to pay these debts. If you don’t, your executor may need to sell some of your assets to cover them. It is also possible that by removing some of your assets from going through probate, by using a trust for instance, you can limit the debt your beneficiaries will have to pay off. Some assets moving outside of probate can be safe from creditor claims to your estate.

After assessing and documenting your assets and debts, consider who you would like to receive them upon your death, and then compile a list of beneficiaries.

Finally, decide what percentage, dollar amount or specific asset each beneficiary will receive. When assigning specific percentages, ensure to consider the liquidity and divisibility of your assets. If the majority of your estate consists of your home, dividing it among multiple individuals or entities like museums or charities can pose challenges. In many instances, the home would need to be sold before distribution can occur. Is this what you or your children would want? 

Another option is to allocate a specific dollar amount to a group of beneficiaries. For instance, you might choose to assign $10,000 to every surviving grandchild. However, it’s essential to avoid making bequests that exceed the assets available in your estate.

How To Disinherit Someone

You can leave your assets to anyone you want. Disinheritance is another option, although it’s important to note that community property laws or elective share laws in many states safeguard spouses from complete disinheritance. Before choosing to disinherit someone, speak to a qualified estate attorney to understand both the legal requirements to do so properly and the ramifications of this action.  

In roughly 80 percent of states, a surviving spouse is still eligible to receive some portion of their spouse’s estate even if the will excludes them. The spouse will have this right even if a divorce is pending at the time of death. Similarly, if someone is not legally married, their partner may have no right to receive anything.

Disinheriting adult children and other family members is generally easier, but doing so isn’t a matter of simply leaving them out of the will. Instead, a will must explicitly name the child or relative you wish to disinherit in a special clause within the document.

Disinheriting someone, especially a child, can have a long-term negative impact on a family. Be aware that wills are public, so a disinheritance will be published by the courts during the probate process.

If you are worried about an heir squandering his or her inheritance, you can create a trust for this person using what’s known as a “spendthrift provision.” This can be beneficial for a potential heir who has demonstrated financial risk due to addiction, immaturity or substantial debt.

Read More: Generation-Skipping Trust

Last Will and Testament vs. Living Trust

Wills can suffice for small or simple estates. But sometimes a different estate planning tool, known as a living trust, is more advantageous.

A living trust is a document in which another party, called a trustee, holds legal title to your property for beneficiaries. Assets are placed inside the trust when you’re alive and can be distributed to people before or after your death. Those assets can retain protection from creditors and other exterior or interior threats.

Potential Benefits of Living Trusts

Customizable Bequests

Distributions may come with particular conditions, such as requiring a grandchild to either graduate from college or reach the age of 25 before being eligible to receive all or a portion of the trust assets

Probate-Free Bequests

Unlike wills, trusts completely bypass probate. Many experts consider this the greatest advantage of a trust because avoiding probate saves time and money.

Privacy

Each will is deposited with the clerk of courts and becomes part of the public record when it enters probate. Trusts do not need to be recorded.

Shelter From Estate Tax
You will not encounter federal estate tax unless your assets total more than $11.4 million. But several states have their own estate tax with lower asset thresholds. A living trust can help shelter your spouse or beneficiaries from these taxes. In the future, that estate tax exemption is likely to change, so trusts can be an effective way to plan for any eventuality.

Trusts can be complex and may not be right for everyone, but they can fulfill specific purposes. A special needs trust, for example, provides for the future financial care of disabled heirs. Many people with disabilities receive Medicaid, Social Security income, or other government assistance with strict asset limits. Direct inheritance can disrupt these important benefits, so the trust assigns the assets to be used for their benefit and care without giving them direct control of the assets. 

Even if You Have a Trust, You May Still Need a Will

Even if you create a trust, you may still need a will. Most attorneys will complete this process together so if either document is stale, you may need to update both. This is especially true if you have minor children because a legal guardian can only be appointed for them in a will.

A trust only protects the items you place inside it. Any assets left outside of the trust will be forced to go through probate and having a will is a necessity to manage these distributions to heirs. If you put your home in a trust, for example, but do not transfer $200,000 of liquid assets, that $200,000 will not receive trust-related benefits.

A pour-over will, which refers to a will that supplements a trust, ensures that any leftover assets are transferred to the trust.

Sarah and Susan, a married couple with a child, are undergoing a divorce. They’ve agreed that Sarah will retain ownership of the house. In exchange for Susan relinquishing her ownership rights, they’ve decided to establish a living trust. This trust specifies that their child, David, will become the sole beneficiary of the home upon Sarah’s demise.

By making the trust irrevocable, Sarah cannot alter David’s inheritance rights later on. This arrangement not only protects their divorce agreement but also assures Susan that her wishes will be honored. A distinguishing aspect of a living trust is its ability to be rendered irrevocable, a capability not offered by a will.

Scott F. Levin, CDFA®Certified Divorce Financial Analyst® and Founder of San Diego Divorce Mediation & Family Law

Scott Levin, a Certified Divorce Financial Analyst® with over two decades of experience, is the Founder and Managing Partner of San Diego Divorce Mediation & Family Law. Recognized as the Chief Peacekeeper™, he brings a unique blend of financial expertise and legal acumen to guide couples through divorce with compassion and efficiency. Scott’s commitment to alternative, mediated solutions underscore his leadership in reshaping the landscape of family law, offering clients a dedicated advocate for fair, informed agreements while minimizing the emotional toll of the process.

Do You Need a Lawyer To Create a Will?

There is no right or wrong answer to this because it comes down to how complicated your finances and last wishes are.

Do-it-yourself legal websites allow users to create a will on their own. Some are free while others charge a fee. They generate a form template based on your state of residence. Once you’ve entered your personal information, you receive a valid will that’s legal in your state.

If your assets are limited and your family dynamics are straightforward, these websites might suffice. However, for more complex estates or unique situations, such services may not be sufficient. 

Consider honestly whether you feel confident in navigating this process independently, without making mistakes or errors. Creating a properly executed will is not a task where cutting corners is advisable. Although you may not be around to see it, you are investing in peace of mind for your heirs. 

Moreover, the cost of drafting a will can vary. According to the American Association of Retired Persons (AARP), it costs between $20 and $200 to create a very basic will online. Hiring a lawyer to do the job can cost anywhere from $200 to $1,000.

Budget-Friendly Options for Creating a Will:

• The American Bar Association and the Legal Services Corporation
• CPAs and tax professionals
• Lawyers who offer discounted bundles and free consultations

If you do meet with a lawyer, do your homework first and be as prepared as possible. Many law firms provide a checklist of documents to bring to your first consultation. Doing so can save time and money. Get an up-front estimate of how much it all costs and understand that sometimes a legal professional will need to sit with you prior to giving you an accurate quote.

You can also create a free will online and take it to an attorney for review. He or she can confirm that your will is easy to understand and complies with state laws.

Sign Your Will and Keep It Safe

It is important that your will is executed in accordance with state law. In some states, you need to have the will executed in the presence of one or two disinterested witnesses and a notary public. A will that is handwritten and only signed by the testator will sometimes not be admitted to probate.

After your will is created and signed, store it in a safe, easily located place. If you place a copy in a safe or deposit box, make sure a trusted person has access to the location when it is needed. Leave copies with a trusted family member, the executor of your will and your attorney. Keep careful track of all copies of your documents so that, if you wish to revoke or amend them later, you can ensure that all copies are destroyed. Additionally, It is possible that someone holding a copy of an old will is not aware of a revocation or amendment.

You may want to consider storing other important documents with your will. These can include deeds, mortgage contracts, marriage certificates, investment information and account numbers, adding an unnecessary expense to your probate administration.

Keep Your Will Updated

A will never expires if executed correctly; it remains valid for the rest of your life. Nonetheless, it’s important to keep it updated. It’s recommended to review it every three to five years or whenever your circumstances undergo significant changes. 

Times To Review Your Will

• At the birth, adoption or death of a child
• After marriage, divorce, separation or death of a spouse
• When you move to a new state
• After major income or financial changes

An outdated will can create unintended consequences for your estate and survivors. For example, a husband and wife may unintentionally disinherit their youngest son if he was born after their will was created and the will does not provide for after-born children.