How to Finally Write Your Will
Gold star if you’ve already drafted one. But more than half of American adults have not. Rachel Emma Silverman, the author of The Wall Street Journal Complete Estate Planning Guidebook, clears away the obstacles so you can check this off your must-do list.
Do I need a lawyer to write a will?
It’s like doing your taxes: You can file without an accountant—or do a will without a lawyer—but personal situations and state laws can make things complex. If, for example, you have children or have many assets, you’ll probably want a lawyer to help ensure that everything is in proper order. Also, if you live in a state that has estate or inheritance taxes (some don’t), a lawyer can strategize ways to minimize taxes, saving your family lots of money. In other words, most people should hire one.
What kind of lawyer do I need?
One who specializes in estate planning.
Is this going to cost me a fortune?
Not if you find a lawyer who charges a flat fee rather than an hourly rate for this service. This is totally doable, but flat fees come in various sizes, depending on local rates and the complexity of your estate plan. (For example, if you want to create a trust to save on estate taxes—or so you can implement rules about when your kids can access their inheritance—that’s more complex and will probably mean a higher flat fee.) Expect to pay between $1,000 and $3,000.
That’s just for a will?
It should be for the suite of estate-planning documents that you need: living will, powers of attorney, for finances and health care.
What if I can’t afford that?
I highly recommend using a trusted lawyer, but if your situation is simple— straightforward assets, no health issues, no multiple marriages—you can try will-writing software, like Quicken WillMaker. It covers all states except Louisiana.
If I’m married, do I even need a will? Doesn’t everything go to my spouse automatically?
One of the most important reasons for creating a will is to plan for the unfathomable possibility that you and your partner will die at the same time—you won’t have control over what happens then.
Does my will include a guardian for my kids?
Yes. And choosing a guardian is very personal and intuitive, obviously. There can be two guardians when it comes to children. One is guardian of the estate (the manager of your child’s money); the other is guardian of the person. You can choose the same person for both roles or two different people.
What will a lawyer ask me?
In essence he’ll ask, “How much are you worth?” and “What does your family tree look like?” Specifically, things like: Do you have good relationships with all your children and want to divide your property evenly? Your brother is great with kids, but is he good at managing money (i.e., should he be both guardian of the children and have power of attorney for your finances)? How do you feel about organ donation and life support? (Subjects for your living will.) These are heavy questions. Ask for a questionnaire ahead of time (all estate lawyers have them), or download the basic forms at the legal resource rocketlawyer.com. Many of the answers will be simple (“My kids get it all”), and some take thought (“Who is the best person to make end-of-life decisions for me?”). Don’t try to do all the work at once. Fill in the blanks over the course of a week, say, so you’re ready for your lawyer with answers—and maybe questions—at your appointment.
Do I need a list of every single thing that I own?
No, but you should loosely tally the amounts in your retirement accounts,bank accounts, investment accounts, and insurance policies. Add in the current value of your home and car, and list any other high-value items, like artwork and jewelry. (These are your assets.) Separately total up everything that you owe on your mortgage, credit cards, and other loans. (These are your liabilities.) List any heirlooms or sentimental items that you want certain people to have. If you really care that Peter gets the piano, say so. In some families, these things are not specified; the heirs take care of dividing up the tangible stuff themselves, but it can cause fights.
What does an executor actually do?
The executor is guardian of your wishes. He or she is in charge of your property, is responsible for making sure that your debts and taxes are paid, and organizes and keeps track of your stuff so that it goes to the right beneficiaries. If you’re married, your spouse is typically the first pick, but you’ll need to name a backup. Choose wisely: This role can be ripe for abuse. Make sure that it’s someone you trust who is competent and neutral—not someone who favors one side of the family over the other. Chose someone your age or younger (there’s a greater chance he’ll be around) and not a family member who has a lot to gain or lose. Your unbiased cousin is a safe bet, or a fiscally responsible close friend. Ask yourself: Who is reliable, is not too emotionally attached, and can get things done? You can also use a professional executor, who can be someone from a local bank or your own lawyer or accountant. Professional executors charge a fee, which varies by state; family members who act as executor are also entitled to the fee, but they typically waive it.
If I do a simple will without a lawyer, what makes it official?
Your signature and witnesses. Every state has specific witnessing requirements. If you don’t follow them, a court will say that you have died “intestate,” which means without a will. You don’t have to file the will anywhere or even have it notarized. Just keep it in a safe place— ideally in a fireproof lockbox or cabinet—and let your executor know where it is.
What if I change my mind? Is it a big deal to change my will?
Not at all. In fact, it’s expected. But ask your lawyer in advance what the fees are to update it. With any major life event— another child, a move to another state, a divorce, a death in the family—you need to update your documents. Depending on the change, you might need to create a whole new will. Writing a new will (which should say in it that it revokes all previous wills) nullifies the old one.
What’s the danger in not having a will?
It’s not as if your children will become wards of the state and your property will be seized. But the state will appoint an administrator to distribute your stuff according to state law (broadly determining, say, that everything you have belongs to the kids and leaving it to them to decide who gets what). If your children are minors, a judge will choose a guardian for them. The real concern is that you’ll have no control over what happens, and your kids could be set up for major financial burdens (such as inheriting debt and serious tax blows). So just do it: Any will at all is better than no will.