Preparing Your Will
Consider the assets you can legally bequeath. If you are married, you may not be able to bequeath every asset you have. Some of those assets may be shared with your spouse, which means state laws and prior legal agreements could dictate how these assets can be bequeathed. Even if you are not married, if you have entered into previous contracts, those agreements may supersede your will. If you are married and live in a common law state, you can bequeath any property that includes your name on the deed, registration papers, or any other document proving title. If you live in a community property state, 50% of all assets you accumulate during the marriage belong to the spouse. The other 50% is yours to distribute. The nine community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Contracts such as prenuptial agreements and trusts can also affect what you can legally distribute in your will. Be sure you examine any of these contracts to determine your obligations.
Determine the division of your assets. Before you write your will you need to decide how you are going to divide your assets among beneficiaries. Name the beneficiaries and include the percentage of your estate they will receive. Make sure the total percentage equals 100. For example, if you want to give 25% of your assets to your mother, you can simply state "To my mother, Tara Smith, I bequeath 25% of my estate." If you are disposing of your assets in an awkward manner, for example giving everything to someone that is not in your family or giving everything to someone you have not known long, you should always speak to an attorney.
Choose who will receive specific assets. If you want to be more particular when you distribute your assets, you can bequeath specific assets to a particular beneficiary. If you do this, the specific asset will be distributed and will not be included in the percentages of your estate (the remainder) that will be distributed among other beneficiaries. For example, you may write: “To Tara Smith, I give my house at 123 Cherry Lane, and to Bob Jones, I give 50% of the remainder.” As the example illustrates, you should be as specific as you can be when making a disposition. Be sure you include any identifying information that will help an executor or judge dispose of your property.
Think about what you want to happen if a beneficiary dies before you. Make sure you consider what you want to happen to an asset that was to be distributed to a beneficiary that happens to die before you. For example, you might write: “To my mother, Tara Smith, I bequeath 5% should she survive me; otherwise the share of Tara Smith shall pass instead to Bob Jones should he survive Tara Smith and myself.” If you do not name someone else to receive the gift, it will "lapse" and be put back into the general pot.
Designate a guardian to minor children. If you have any children, you should consider naming someone to be their guardian in case anything happens to you before they reach 18 years of age.
Determine who will receive conditional gifts. You might consider including gifts that will only be distributed if the beneficiary meets a specific condition. Be aware that you cannot condition a gift on some illegal action taking place or on something that has been deemed against public policy. For example, you cannot condition a gift on someone getting married to a certain person.
Consider any special requests. Somewhere in the will you will want to include directions about handling your death. These directions should include how you want your remains handled, where you want to be buried, and how you want the funeral to be paid for.
Writing Your Will
Decide how you will write your will. Before you start, you will need to decide whether you will hire an attorney, use an online resource, or write the will yourself. An attorney can review the will you write, provide you with witnesses and ensure that you have met your state's requirements. This can be a costly option depending on your attorney's fees and how complicated your will is. Using an online resource will automatically ensure that your will is written according to your state's requirements. Online will writing services generally cost between $60 and $100, depending on how complicated your will is. When you write your own will, you will need to know your state's requirements and decide how to fulfill them. You can write your own will and be responsible for making sure it fulfills your state's requirements. Be aware that state laws can change from year to year, so the process may be more complicated than you think.
Identify yourself in the will. Include identifying factors in your will to ensure that your will isn't confused with that of someone else. Identify yourself by name, Social Security number, and address. If you don't have a Social Security number, provide a different form of ID, such as a driver's license or state ID number. You may also include your date of birth to further identify yourself.
Make the required declaration. The first sentence of your will should introduce the document as your last will and testament. Simply state: "I declare that this is my last will and testament."
Nullify all previous wills. This type of provision will ensure that any previous wills that you may have written are no longer valid. To do this you can write: "I hereby revoke, annul and cancel all wills and codicils previously made by me, either jointly or severally.”
Declare your mental wellbeing. Wills are often challenged on the ground that the testator (the person who's will it is) was not of sound mind when he or she executed it. Therefore, you should always include a statement that proves your soundness of mind. Most often it is argued that a testator had dementia or another sickness that prevented him or her from understanding the effects of the will. Include this statement: “I declare that I am of legal age to make this will, and that I am of sound mind.” You can also videotape the execution of the will to put to rest any future allegations of incapacity.
Include a statement of your intent to create the will. All dispositions made in your will must be made according to your wishes. This means you cannot have anyone influence your decisions in any way. To ensure the court knows you intended all the gifts you made, you should include a statement that looks like this: "This last will expresses my wishes without undue influence or duress.”
Write provisions that carry out your wishes. When you get to the body of your will, you will include all of your distributions. Write provisions that carry out your ideas you created when you prepared your will. This includes who will get certain assets, who will get certain percentages of your estate, and who will get certain conditional gifts.
Appoint an executor. This person will ensure that your will is followed. The executor is known in some states as a “personal representative.” You may also want to name a secondary executor if the first is unable to perform the duties at the time of your death. In addition, you should empower your executor and authorize them to act according to the will you left. The executor distributes assets and property according to your will. Because executors are so frequently asked to handle assets in a professional manner, you should try to select an individual with a background in business or law. Include a provision that looks something like this: “I hereby nominate, constitute and appoint [executor's first and last name] as Executor. If this Executor is unable or unwilling to serve, then I appoint [backup executor's first and last name] as alternate Executor.”
Finalizing Your Will
Sign your will in the presence of witnesses. Each state has rules about signing a will. In general, you will need to sign and date your will after it has been completed and after you have acknowledged its accuracy. In addition, you will have to sign the document in front of two witnesses who will have to sign a statement attesting to your legal capacity to enter into the agreement.
Store the will safely. Your will is not filed with the courts until after your death. If the will is destroyed or cannot be found, it can't be filed. Make sure that you store the will somewhere that can be found after your death. Consider storing your will in a safe at your home or in a safety deposit box at your bank. Many people give their wills to an attorney for safekeeping.
Provide a copy to your executor. If you trust your executor, you should consider giving them a copy to hold onto in addition to keeping the original somewhere safe.
Changing Your Will
Do not edit your will once it has been signed. The will you sign and witnesses attest to may not be valid if you change the provisions after it has been signed. For starters, the witnesses signed and attested to the fact that you signed the original will, not the will as it is edited. Also, an edited will may create ambiguities that the court will be responsible for figuring out. If you want your wishes to be carried out effectively, you should not edit your will after it has been signed.
Use a codicil for minor changes. A codicil is a document that refers to your original will and states that you are making changes to that original will. Once you create your codicil, you will keep it with your original will.
Make a new will if you have substantial changes. Sometimes wills will need to be re-written. This is especially the case if a lot of time has elapsed since you created your last will. Children will grow up, your marital status might change, and the number of assets you have may grow or shrink substantially.
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