It’s no fun to think about making your will. Nevertheless, says estate-planning attorney Martin Shenkman, “A will is a critical document that probably everyone 18 and over should have.”
To get yourself into the proper mindset for creating a will, Shenkman says, “Reframe the process from a focus on dying to an act of love for those you care about.” With that in mind, Shenkman takes us through how to make a will, including naming beneficiaries, establishing guardianship for minor children, avoiding the probate process, and updating a will in the future.
What Is a Will?
A will, also known as a last will and testament, is a legal document stating what happens to your property, money, and belongings after you die. It names people to carry out your wishes and, if you have minor children, designates who will care for them.
Without a valid will, state laws determine how your assets are distributed, a status known as “dying intestate.” Creating a will gives you control and makes settling your estate easier for your loved ones.
Will vs. Other Estate Planning Documents
Sometimes people confuse a will with other estate-planning documents.
A durable financial power of attorney allows someone to make financial decisions on your behalf if you become incapacitated.
A healthcare power of attorney or healthcare proxy authorizes someone to make medical decisions if you’re unable to.
A living will or advance directive are not types of wills but rather a statement of your preferences for end-of-life medical treatment.
And a revocable living trust is a vehicle that holds your assets during your lifetime and directs their distribution after death, avoiding probate. Having a trust does not obviate the need for a will, since guardians should be appointed in a will—and you can never be certain that every single asset has been transferred to your trust.
Shenkman cautions that, “many people are zealous that all they need is a revocable trust,” but this isn’t so; a will serves as a safety net to ensure any assets left outside the trust are still distributed according to your wishes.
Key Steps to Making a Will
As a crucial first step, Shenkman says, “You need a holistic, comprehensive plan.” That means drafting some of the additional estate-planning documents mentioned above, and making sure you have proper liability coverage, life insurance, disability insurance, beneficiary designations, and more.
These days, you have plenty of choices for how to make your will.
Step 1: Decide How to Create Your Will
Using AI: It may be tempting to go DIY by leaning on your favorite robot. But Shenkman says, “I don’t think AI is there yet. You still need the legal judgment to ask the right questions and write the correct prompts.”
Online will-making services: These are an affordable option, and most claim to have forms tailored by lawyers that work in every state. However, take plenty of time educating yourself about the process rather than just relying on the software. “These programs offer a lot of choices, which can sometimes be a negative in terms of information overload,” Shenkman says. “Try not to let it take you on tangents and go into complexities and details that you don’t understand.”
Have a trusted friend look over your shoulder to ensure you’re not missing something. “Your friend can give you objective feedback—you can’t do that for yourself,” Shenkman adds. Once the software has created your document, avoid tinkering with it more than absolutely necessary. The more changes you make, the more potential problems you might create.
General-practice lawyer: Especially if you’re in a rural area, you might not have access to an attorney specializing in estate planning. You can certainly use a general lawyer, but be aware that that person won’t have the same expertise as someone who exclusively focuses on estates.
If you have complex issues such as estate tax or a child with special needs, you’ll almost certainly want to see a specialist.
Estate-planning attorney: Yes, this costs the most, but you could save your family multiples of the difference in cost by avoiding litigation and years’ worth of lawyer fees after you’re gone as they try to sort out who gets what.
Step 2: Make a List of Family Members and Assets
After choosing your method, your next step is to map out two things: your family and your assets.
Family: List everyone you consider family, both by blood and by choice. Creating a family tree is helpful. Include everyone, even those you don’t plan to bequeath anything to.
Assets: Create a “snapshot balance sheet,” a one-page list of assets and liabilities, including all accounts and their beneficiaries.
Step 3: Choose Your Beneficiaries
Next, decide who will receive what. You’ll need to walk the line between specificity and flexibility, asking yourself a lot of “what-if” questions.
Example one: Imagine a will that reads, “I leave nothing to my daughter Jane because she is fabulously wealthy and has no need for my money.” Years later, Jane hires a lawyer to argue that the wealth all belonged to her now ex-husband, with whom she’d had a prenup, leaving her penniless. Did the parent intend for her to receive nothing even if she no longer had money?
Example two: Someone says, “I leave the house at 123 Main Street to my son John and an equivalent amount of money to my daughter Jill.” John’s appraisal might value the house at $200,000, but Jill’s could put it at $800,000. Including a dispute-resolution mechanism can prevent such a pitfall in the will (e.g., a third appraiser to evaluate the first two).
Step 4: Name an Executor
Next, you must name an executor (personal administrator). The executor of a will is the person who will carry out the deceased person’s wishes and manage the process of settling the estate.
Step 5: Appoint Guardians for Minor Children or Dependents
If you have minor children, the will is where you’ll appoint guardians for them in case of your demise.
Pitfall to avoid: Specifying “My brother James and his wife Julie” leaves too much uncertainty. What if James and Julie split? What if one of them dies? A bulletproof document will provide for such eventualities.
You may wish to draft a set of special instructions or wishes of a religious nature or pertaining to how your children should be raised.
Some people include such wishes in their wills, but Shenkman advises, “Those may belong in a separate letter of instruction, not in a legal document. If you put it in a will, which is legally binding, and the language you use is imprecise, that may lead to problems.”
Your final steps are to sign and witness your will.
Making Your Will Legally Valid
Witness requirements for a will vary from state to state, and you must strictly follow your state laws. However, Shenkman says, “I always want to have two witnesses and a notary on every will. I want them all above age 18, and I don’t want them mentioned in the document.”
Storing and Sharing Your Will
Keep your will in a secure, accessible location such as a fireproof home safe, an attorney’s office, or a safe deposit box—the latter, however, can be difficult to access and may require probate to gain entry.
Make sure the executor, your spouse, or other trusted family members know that it exists and where it is stored. Sharing the will with the executor can be a good idea so that they will be armed with foreknowledge of your wishes.
When and how to update your will
“Everything in life changes,” Shenkman says. That means, despite your careful planning, your will is going to have to be updated periodically, likely every three to five years.
Birth, death, divorce, illness, and changes in fortune are just some of the reasons why a will must be updated. Ideally, you’ll make any necessary revisions under the guidance of an estate-planning specialist, but at the very least, you’ll do so with the same careful attention to detail with which you initially created the will.
