Drafting a will is a lot easier than most people think. Having an attorney draft or review the will is a good idea, but it's not necessary in order to make it legal and binding.
State law applies in the case of wills, and each state has different rules. When drafting a will, it's important to research your state's laws. Most states require that the will be signed by the testator and at least one witness. Here's some basic information that most states require in order for wills to be valid:
- Your name
- If you're married, your spouse's name and when you got married
- Your children's names and how you want any stepchildren or foster children to be treated
- A statement revoking any other existing will, if there is one
- The name of your executor and usually one alternate
- A list of powers you wish your executor to have
- List of any special gifts or personal property
- Instructions for distributing your estate after debts, taxes and other expenses have been paid
Burial instructions are often included in a will, but it's generally a good idea to have them written up in a separate statement that can be easily accessed. Imagine the difficult spot your family would be in if your burial wishes were locked in a safe or difficult to find.
Pension plans, life insurance policies and annuities should not be in the terms of a will. Those benefits are passed directly to the beneficiary named in those documents. You can name your estate as the beneficiary of these assets, but doing so can lead to delays in the execution of the will or create tax disadvantages.
Probate court rules whether or not a will is valid based on a few important details. Most states require that you be at least 18 years old. All states require that you be of sound mind. While some members of your family may doubt this from time to time, legally speaking, it means you are:
- Mentally competent and not suffering from a mental illness
- Clear that you're creating your will
- Aware of what property you own
- Appraised of the estate plan you're making
- Aware of the people related to you
These requirements apply only at the moment the will is drafted. If someone creates a will and later falls into mental illness, the will still applies.
The executor, or personal representative, is the most important person named in the will. He or she gathers and makes an inventory of all personal property, pays the deceased person's legitimate debts and distributes the assets under the terms of the will. The personal representative can be anyone -- a family member, close friend or personal attorney. He or she should be someone that you trust implicitly. It's also a good idea if the executor has some business experience and is intelligent and thoughtful. Serving as executor and dealing with grieving families is never an easy task. Most testators name an alternate in case the first choice for nomination isn't able to perform the required duties. If you don't name an executor, probate will appoint one, typically one of your heirs.
In the next section, we'll learn about the different types of wills and how they function.