Many people believe it’s not necessary to make a will while they’re young, before they have children, or if they’re not married. There might be some truth to this but you should forego making a will only if you’re completely familiar with your state’s intestate succession laws. Those are the laws that take effect if you die without a will.
If you die intestate—without a will—the laws of your state determine who gets your property. If you have a child, the absence of a will can lead to serious consequences because you haven’t properly chosen a legal guardian for your child. That means a court will have to choose one. Also, if you die intestate, some relatives you didn’t speak with may end up being beneficiaries of your property. The bottom line is even if you are young, single, and have no children, it’s beneficial for you to have a will.
Reasons to Make a Will
The most important reason to make a will is to make sure your wishes are carried out after you die. It’s important to have a will even if you have a small estate. An estate is the property you own and what you owe. A will tells the probate court what you want to do with your property and who you want to receive it. Without a will, your property could end up going to various heirs you didn’t suspect would get it.
Each state has different laws concerning what happens if you die intestate or without a will. In many cases, if you have a spouse, either the spouse will inherit most of your estate or all of it, depending on your state. If you have children, state law determines whether they inherit property. In some states, they will get a share of your property along with your spouse. In other states, they will not. Stepchildren generally do not inherit under state laws unless they are named in the will. The same applies to domestic partners—unless named in a will, they usually do not inherit anything.
It is possible in some states that if you have no children, your parents could inherit from you, and it’s also possible for siblings to inherit property if there are no surviving parents. This could include half-brothers and half-sisters. If there are no surviving family members, it’s possible for the state to take the entire estate. If this is not what you want, see an estate planning attorney to draw up a will for you. It doesn’t cost as much as you think and you can shop around.
If you have children, it is essential to have a will so you can appoint a guardian for your children. If you don’t appoint a guardian, the court will appoint one for you and it may not be someone you want.
If you don’t have children and have only a few possessions, you may not need a will if you understand the laws of intestate succession in your state.
What Can a Will Do?
A will is a document which shows how you want your wishes carried out after you are deceased. It can include:
• Who inherits your property and how to divide your assets;
• Who the contingent beneficiaries are in the event the beneficiaries you chose die before you do;
• Who is the guardian of your child and the successor guardian;
• Who you want to disinherit, if anyone;
• Who you want to name as executor of your estate to pay bills and administer your estate;
• How you want your pets cared for;
• Who you want to manage the children’s property, called a property custodian or trustee;
• The names of people who might not inherit from you without being named in the will—for example, a niece, friend, stepchild, grandchild, domestic partner or common law husband or wife;
• The name of a charity you want to inherit some of your property, if desired;
• If you have a living trust, a clause in the will which states that whatever property was left out of the trust gets transferred into the trust after you die, or however else you wish to deal with property that you forgot to specifically mention.
How do You Make a Will?
Certain things must be present in a valid will. If the will is not valid, it will be as if you died intestate, so it has to be done correctly. A will has different requirements in each state but many of the requirements are the same. Check with an estate planning attorney for the requirements in your state.
Making a Legally Valid Will.
To make a valid will, the will must:
• Be made by someone of sound mind when they make the will so they know they are making a will, what it means, and what it contains;
• Be in writing, which can be by computer, typewriter, or by hand if the witnessing and proper signing for handwritten wills are followed;
• Be of legal capacity to make the will, which usually means to be at least 18 years of age;
• Be made with intent by the testator (the person making the will) to make a will;
• Be made voluntarily, as any will made under threats or coercion will be declared invalid;
• Function as a will so that it includes a) distribution of your property to certain beneficiaries, and b) includes the possible appointment of an executor and a guardian for your children;
• Be signed in the presence of at least two witnesses and a notary; in some states three witnesses are required. Do not let anyone who is mentioned in the will be a witness or the will could be declared invalid. Also ensure that all witnesses are at least 18 years of age;
• Be dated the same date it is signed;
• In some states, have each page initialed in the margins;
• Not have staples removed. If stapled, removing them generally renders the will invalid because the court will think it was tampered with.
It’s important to make a will to ensure that your property goes to your chosen beneficiaries and to ensure that anyone you want to disinherit is specified. A will is also essential for choosing a guardian and an executor. To make sure your will is valid, see an estate planning attorney who can prepare the will under the laws of your state. You also can have an estate planning attorney review any will you have made online to make sure it complies with your state’s laws.