Writing a will is one of the most important financial steps you can take. A will allows you to specify what will happen to your hard-earned possessions after you die. It can also help ensure beloved family members and friends are provided for appropriately.
You may find that working with a lawyer is the best approach to preparing a will. An attorney can provide insight into the legal requirements for making a valid will and can help address complex issues such as what to do if you're leaving money to minors or want your pets to be provided for.
But not everyone wants legal help — or wants to pay the professional fees for it. If you don't, you'll need to consider how to write a will without a lawyer to ensure all your I’s are dotted and all your T’s are crossed. Here’s what to consider.
Benefits of having a will
There are many advantages associated with creating a last will and testament. Some of the biggest benefits include:
- You can specify how your property should be distributed. If you do not provide instructions for what happens to your assets, intestate state laws will dictate how your money is to be distributed.
- You can name a personal representative. This puts you in charge of who is responsible for managing and distributing your estate after you die. If you don't name a personal representative or executor, the court may have to appoint a guardian for your estate — which may not be the person you'd have chosen.
- You can choose a guardian for your minor children. You'll be able to ensure you control who raises your children so you can select someone who shares your values. And you won't risk your kids becoming the subject of a custody battle or having the court appoint their caregiver.
- You can give money to charity. If there are causes you believe in, you can choose to support them after your death.
3 reasons to consider working with a lawyer
Although you are allowed to write a will without a lawyer, there are some risks to doing so. Here’s why you may want to work with an estate planning attorney.
Your will may not hold up in court
If you don't follow state law or there are errors in your will, the court may determine it is not a valid estate planning document. If the court refuses to enforce your will, you'll miss out on the chance to control what happens to your assets and your children.
Unfortunately, it may not come to light that your will is invalid until after you die and it's too late to fix the problem.
Your will may not be comprehensive enough
It can take specialized training and legal skills to understand everything that should be included in a will. For example, if you are leaving money to minors, you need to be aware of what your options are for specifying who will control that money.
Tools like the Uniform Transfer to Minors Act can help you easily specify who should be in charge of a minor's inheritance. But if you don't know how to utilize them, you could create a situation in which the court must appoint someone to manage the money.
It may not address all the legal issues
Many complicated legal issues could arise when writing a will that you may not be aware of. For example, if you try to use a will to disinherit a spouse and leave your money to others, this may not work due to laws related to the spousal elective share. Spousal elective share refers to rights a surviving spouse has to the estate of a deceased spouse.
An attorney can help you to identify legal issues your will raises and address them proactively.
8 considerations for writing a will without a lawyer
If you decide to go forward with a do-it-yourself will, there’s a lot to consider to ensure you have a legal will.
1. Decide on what type of will you will need
There is actually more than one type of will you could create, though the options available to you vary based on state laws and your goals for the document. Some examples of different types of wills include:
- Formal wills/last wills and testaments: These are written wills that are signed by their creator and that comply with state laws regarding witnesses. They are used to distribute your property and name a guardian for your children.
- Holographic wills: These are handwritten wills that are not signed by witnesses. Some states allow holographic wills in all situations, or in specific situations such as if you are a soldier at war. The validity of the holographic will may need to be proved in court, which could involve a handwriting analysis to confirm you actually wrote it.
- Statutory wills: Some states provide basic fill-in-the-blank will forms or templates that you can use to create a simple will. These statutory wills provide instructions on what is required for the document to be considered valid, such as signing the statutory will in front of witnesses or notarization.
- Joint wills: These are for married couples and act as the last will and testament for both. There can be serious enforceability problems and they should only be chosen after talking with an attorney who understands your state's laws on this type of estate planning document.
- Wills with testamentary trusts: Testamentary trusts are created by last wills and testaments. They appoint a trustee to manage assets on behalf of beneficiaries (someone who received funds from the will, typically a minor). The rules can also be complicated when using a will to create a testamentary trust, so an attorney should typically be consulted.
- Living wills: A living will is different in that it’s not used to distribute assets. Instead, it’s used to specify what future health care decisions should be made on your behalf if you become incapacitated. You use a living will to consent to, or deny consent to, specific medical procedures. It is one of several types of advanced directives, including a health care power of attorney or health care proxy, which allows you to name someone to make medical decisions for you if you can't.
2. Research the laws in your state
Your estate is everything you leave behind that passes through probate court. Assets that transfer automatically to someone else, such as a jointly held home that your spouse co-owns, are not part of your probate estate.
Individual states set their own laws for estate planning. For example, some states allow holographic wills. As mentioned above, these are unsigned. Others do not and require you to have your will signed by witnesses or a notary public.
State laws also differ on how large an estate must be to pass through a formal probate process. This is a court process in which the validity of your will is determined and your assets are distributed. Some states charge inheritance or estate taxes on larger estates, which you may want to plan for. The best tax software can also help your heirs understand inheritance taxes that could be due after your death.
If you don't know the rules, you could end up making a will that is not valid or that does not provide appropriate protection to loved ones. This also means that if you move, you may need to rewrite your will to comply with your current state's laws.
3. Use reliable software
When you are figuring out how to manage your money, the right software tools can be an invaluable source of help.
This is also true when writing a will, as there are many online will programs that can help you to write a legally valid last will and testament that complies with your state's laws.
When choosing software to help you write a will, you'll want to take the following factors into account
- Services: Make sure the program allows you to do the specific things you want, such as naming a guardian for minor children.
- Process: Does the program ask you simple questions to make writing a will easy, or does it simply provide a will template that you have to fill out yourself?
- Time involved: Some programs simplify the process and make it possible to write a will quickly.
- Cost: Some programs are more expensive than others
- State-specific templates: You'll want to make sure the program you choose has templates in place that follow the rules in the state where you live.
- Types of legal documents you can create: Are you able to make just a last will and testament or can you also make other documents such as a power of attorney?
- Updates: Pay attention to whether the program allows you to update or make changes to your will as needed, such as when state laws change or your life circumstances change.
Trust & Will is one example of a program worth considering. It allows you to create trust-based estate plans, wills, and guardianship nominations, and it provides state-specific documents. Nolo’s Quicken WillMaker is another popular option.
4. Include all your assets
Virtually all of your assets should be included in your will, other than accounts or property that are jointly owned with rights of survivorship. You’ll want to name who receives your assets. Assets include:
- Bank accounts
- Real estate
Some assets, such as life insurance policies and retirement accounts, already have a named beneficiary, so you typically don’t need to name a beneficiary in your will. You may also be able to name a beneficiary for your bank accounts.
You can also specify who will inherit your "residuary" estate. This includes all the assets that pass through probate for which you didn't name a specific beneficiary.
5. Name a guardian for minor children
It's important to name a guardian for minor children and children with special needs (if appropriate). You can name a guardian to provide physical care for your children or to manage assets you've left for your children.
In many cases, you'll name the same person to serve as both the guardian who has custody and who manages the children's inheritance.
6. Don't forget your pets
If you have a pet, you'll want to make sure the animal is cared for when you craft your will. Pets cannot inherit money directly through a will, but you can create a pet trust.
This will leave money to provide for the care of a pet. You can also appoint a person to manage the funds and ensure they are used properly.
7. Get it signed and notarized if needed
Although state laws differ, you may need to sign your will and have it notarized. Or you may need to sign your will in the presence of several witnesses who also put their signatures on the document.
Properly signing your will and getting witness or notary signatures will be the last key steps to ensuring the court determines the document is legally valid and enforceable.
8. Store it somewhere safe
You should store your will in a safe place with other important financial papers, perhaps as part of an “in case of death” binder. You could also store it in a safe deposit box at your bank or in your office or library at home.
You may also be able to file your will with the Register of Wills in the state where you live. The person who you choose as the executor or personal representative should be told where your will is kept. If you keep a copy on file with the Register of Wills office, you will likely need to pay a small one-time fee.
Is a will legal if you write it yourself?
A will is legal if you write it yourself as long as you comply with state-specific requirements and use appropriate language, such as stating that you’re of sound mind. For example, some states will require you to have signed the will and to have the signatures of witnesses or a notary as well. You should make certain you understand your state's laws before making a DIY will.
How much does it cost to make a will with a lawyer?
According to LegalZoom, attorneys typically charge between $150 to $600 to make a will, and the average cost of making a basic will is anywhere from $200 to $600 according to Trust & Will. However, if you have a complex financial situation, the fees for making a will may be higher.
What are some disadvantages of writing your own will?
The biggest disadvantage of writing your own will is that you will not have professional legal advice from a trained expert.
Attorneys know the state laws for writing a will, and they can advise you on how to ensure your will is legally valid and less likely to be contested by your heirs. An attorney can also help you make sure your will is comprehensive enough to include everything necessary to provide full protection for your loved ones.
Without an attorney, it's possible your will won't be valid, that your heirs will challenge it, or that you will be missing clauses you need such as provisions detailing who should manage the assets left to minors.
Writing a will is one of the most crucial steps in the estate planning process. Make sure you think carefully about whether writing it is something you can handle on your own or whether getting legal help is worthwhile. By making an informed choice, you can ensure your loved ones are provided for after you're gone.
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