Is This Will Right for You?

The will in this book is simply perfect for many people, but not for everyone. Whether or not this basic will is right for you depends on the size of your estate, the complexity of your family situation, and your estate planning needs. This section will help you decide whether or not this will is right for your situation.

Using a Basic Will

Wills come in varying sizes and complexities. If you have a large estate and complicated wishes for your property, you might pay hundreds or thousands of dollars for a 50-page will drafted by lawyer. But if you have an average-sized estate (less than $1 million) and a simple plan for the distribution of your property, you may only need a four-page basic will that you can make yourself. This book shows you how to make that kind of basic will.

In fact, if you’re healthy, relatively young, and own property less than the threshold limit for federal estate taxes (see Chapter 6), a basic will may be the only estate planning you need, at least for now. As you become older or wealthier, a basic will may no longer be the most economical and efficient method for passing your property. At that time, you will benefit from more sophisticated estate planning.

However, for now, if you have an average-sized estate and your plans for your property are fairly simple, a basic will document will work for you.

Making Your Own Will

Let me reassure you here at the start that preparing a basic will is not hard for most people. A basic will is a simple document used to transfer your own property to whomever you want to get it after you die. If you have a modest estate and simple wishes about what you want to do with it, you can make your own basic will.

Take a common situation, where both members of a married couple want to leave their property to the other spouse. If that spouse isn’t alive, then all property is to be divided equally between their kids. What the couple wants can be said in two sentences. Why should accomplishing their straightforward desire in a valid legal document be so difficult that an expert must be paid? This book is based on the truth that there’s no reason to involve a costly expert if a will writer has a simple estate and uncomplicated desires for what happens to that estate after they die.

Now let’s look at a few real-life situations where a basic will from this book will work fine.

Example 1:
Nyrit and Jerome, in their late 30s, own a home, two cars, and some savings. Their net estate totals $463,000. They have one child, Mark, age 12. Each prepares a will leaving all of his or her property to the other. If they die together, Mark is to receive all their property. Nyrit and Jerome agree that Nyrit’s brother Iraz will care for Mark and manage the property until Mark turns 18.

Example 2:
Sam, a widower, owns property with a net worth of $510,000. He has three adult children. He creates a will leaving all his property equally to his children. He specifies that if any child dies before him, that child’s share is to be divided equally between the surviving children.

Example 3:
Barbara is a divorced mother with two teenaged children and an estate totaling $123,000. Her ex-husband is a good father to their children, but is not good with money. Barbara prepares a will leaving all her property equally to her children. Because Barbara does not want her husband managing money she leaves to her children, she uses her will to appoint her sister Debbie to manage each child’s property until each child turns 18.

Who Should Not Use This Book

If you have any complexities in your family situation, your property, or your beneficiary plans, this book is not for you. I could go on for pages trying to define what "complexities" are, but I believe I can rely on readers’ common sense here. I’ll offer a few specific examples of situations where you’d need to consult a lawyer to safely prepare your will:

• A child or family member has a disability or other special needs that you wish to address in your will when leaving that person property.

Resource: Trusts for disabled children. Many Americans have a child or other loved one with a disability who requires long-term support and medical assistance from government programs. Money and property left directly to people with disabilities may disqualify them from government assistance. Special Needs Trusts: Protect Your Child’s Financial Future, by Stephen Elias (Nolo), provides a solution. Using the book’s clear-English explanations, information, instructions, and forms, you can create a special needs trust to provide for your loved one without jeopardizing public benefits.

• You are in a second or subsequent marriage, you have children from a prior marriage, and you believe there is a real potential for conflict between those children and the children you have with your current spouse. By contrast, there are certainly many second/subsequent marriages where such conflicts are unlikely. In that case, you can safely use a will from this book if it fits your other needs.
• You believe that someone might contest your will. To contest a will, the person contesting must argue that the will writer was not mentally competent when writing it, or that the will was procured by fraud or duress (such as some evildoer exerting undue influence over the will writer). I want to assure you that will contests are quite rare, and it’s even more rare that anyone succeeds in overturning a will. Happily, the great majority of people don’t face any realistic possibility of someone contesting their will.
• You want to create a trust protecting property for two generations. For example, you want to leave some property in trust for your child, and you also want that property to go to that child’s children (your grandchildren) when your child dies.

See Chapter 11 for information about other Nolo self-help resources that address concerns not covered by this book.

Wills 101

There are surprisingly few legal restrictions and requirements in the will-making process. Let’s look at the basic rules.

Who Can Make a Will?

You can create a valid will as long as you meet the following two criteria:

You must be at least 18 years of age. Some states allow younger people to make a will if they are married, in the military, or legally emancipated (have achieved adult status by order of a court).

You must be “of sound mind.” This means you must:

• know what a will is, what it does, and that you are making one
• understand the relationship between yourself and those you would normally provide for in your will, such as a spouse or children, and
• understand the kind and quantity of property you own and how to distribute it.

In real-world terms, a person must be pretty far gone before his or her will could be invalidated by a judge on grounds of the will writer’s state of mind. Forgetfulness, or some diminution of memory capacity, isn’t sufficient to invalidate a will. If you can read and understand this book, your mind is sound enough to prepare a valid will.

Will Requirements

The laws in each state control whether a will made by a resident of that state is valid. You should make your will in the state where you live. If you move to another state, don’t worry. A will that is valid in the state where it was made is also valid in all other states.

If you’re temporarily living outside the United States, your state is where you have your permanent residence (or "state of record," if in the military). If you are living outside the United States permanently, do not use this book.

Following are the bare bones legal requirements of a valid will. The will must:

• include at least one substantive provision— either giving away some property or naming a guardian to care for minor children who are left without parents
• be signed and dated by the person making it, and
• be witnessed by two people who are not named as beneficiaries under the will.

Also strongly advisable is that the will:

• name someone to enforce the terms of the will (your executor), and
• be comprehensible; nonsensical, legal-sounding language, such as "I hereby give, bequeath and devise," is not necessary.

Contrary to what some people believe, a will need not be notarized to be legally valid.

Types of Wills

Formal wills are typewritten, signed, and witnessed. That is the kind of will you would get from a lawyer, and that’s the kind of will you can make using the forms from this book. There are a few other types of wills, but none are as legally reliable as a formal will.

Unwitnessed, handwritten wills—in legalese, "holographic wills"—are legally valid in only a few states. Further, handwritten wills are risky, even where legal. Most obviously, after your death, it may be difficult to prove that an unwitnessed, handwritten document was actually written by you and that you intended it to be your will. Further, many judges hold handwritten wills to very strict standards.

A typed will that has been properly signed and witnessed is much less vulnerable to a challenge of forgery or fabrication than a handwritten will. If need be, witnesses can later testify in court that the person whose name is on the will is the same person who signed it, and that the person made the will voluntarily and knowingly. Also, in many states a simple legal document called a self-proving affidavit may be signed by the will writer and the witnesses before a notary to make the will accepted in court more easily.

A few states accept the historical leftover of oral (spoken) wills, but only under very limited circumstances, such as when a mortally wounded soldier utters last wishes. Oral wills, even in the states that accept them, are of no use for people in normal life situations who don’t fit into the narrow categories permitted.

Nevada is the only state to authorize an "electronic will"—that is, a will created and stored exclusively in an electronic format, usually on a computer. The will must use advanced technology to create a distinctive electronic signature and at least one other way to positively identify the will maker, such as retinal scan or voice or face recognition technology. While such technology may develop soon, no readily available methods currently exist for making an electronic will that is trustworthy and valid. It seems that Nevada wants to be legally prepared if such methods become available. If they do, other states are likely to follow Nevada’s lead and allow electronic wills.

Finally, you may have heard of audiovisual wills, in which you are filmed (videotaped) as you speak your will desires. Audiovisual wills are not legally valid wills, because no state legislature has authorized them.

About Probate and Taxes

You’ve probably heard of probate and know it has a dubious reputation. In probate, the will of a person who died is filed with a court, and property is located and gathered by the estate’s executor. Debts and taxes are paid, and the remaining property is distributed as the will directs. Most property passed by will must go through probate.

Probate certainly has drawbacks. It can be lengthy, commonly taking a year or more. It can also be expensive, normally requiring the services of lawyers and perhaps other specialists. Fees for these experts vary by state; however, payment will always come out of property you intended for family and friends.

The good news is that people whose situations warrant a basic will don’t need to worry about probate at the time they write their will. The main concern of those who need a basic will is to make legal arrangements for the unlikely event that they die suddenly and unexpectedly. Yes, with a will there is a risk that their property may end up in probate. But for those who don’t expect to die soon, or die wealthy, that risk is preferable to creating complex and often costly estate plans many years or decades before they’re likely to come into play. (See Chapter 6 for more about probate and common ways to avoid it.)

Similarly, if a basic will is right for you, you probably don’t have to worry about estate taxes either. Theoretically, the estate of every person who dies is subject to federal estate taxes. However, the personal estate tax exemption allows a set dollar amount of property to be transferred free of tax— the result is that only the estates of the wealthy end up actually owing federal estate tax.

The personal estate tax exemption varies by the year of death. In 2008, the exemption is $2 million and then it rises to $3.5 million in 2009. Under current law, there is no estate tax in 2010, but it reappears with an exemption of $1 million in 2011. Unless you own property worth more than the estate tax exemption for the year you die, your estate will not owe federal estate tax. For more about estate taxes, see Chapter 6.

Caution People with estates above the estate tax threshold should consider estate planning beyond the scope of this book. If your property, whether individually or combined as a couple, exceeds the estate tax threshold, you may be able to save large amounts of money from the tax man by using more sophisticated planning methods than preparing a basic will. The rudiments of estate tax planning are discussed in Chapter 6.

Getting It Done

In the face of the intense emotional force and mystery of death, preparing a will may seem trivial. Although this is not a philosophical or spiritual book, I want to acknowledge that the emotional realities involved in a death are profound. But however one chooses to deal with death spiritually or philosophically, there are practical issues that must be confronted. A will is the easiest way to handle one of the most important practical matters: transferring property.

It’s also important to acknowledge that the process of writing a will is more than a practical necessity. Deciding who you want to receive your property after your death can be a significant process. The peace of mind one achieves by preparing a will—having one thing on that nagging list of "really should be dones" behind you—is very real and satisfying. Certainly it’s no denigration of death, or life, for you to be concerned with the wisest and most desirable distribution of your property.

In spite of this, the unfortunate reality is that many Americans still don’t have a will. Why not? No one knows for sure, but here are my hunches:

• Lack of reliable information. The legal establishment has managed to mystify the process of writing a will. People fear either making mistakes by doing it themselves or they don’t know they can prepare their own will. In fact, no law requires that a will be drafted or approved by a lawyer.
• Cost. People understandably resist paying a hunk of money to a lawyer for what their intuition tells them shouldn’t be a difficult or complicated task.
• Superstition. Some people fear that just thinking about the practical consequences of one’s death could somehow hasten death’s arrival. We know better, right?
• Good old procrastination. For anyone with loved ones, it’s certainly a bad idea to risk dying without a will, which leaves the distribution of one’s estate for state law to determine. (This is called "dying intestate.")

How To Proceed

This book is designed to lead you, sequentially, through the steps you’ll need to take to prepare your own will. Chapters 2 through 5 discuss the heart of making a will: who gets what, what will happen to your children, who will you name to be your executor. Chapter 6 briefly looks beyond a basic will into general estate planning.

Chapter 7 contains detailed step-by-step instructions for completing each of the five sample will forms contained in Appendix B and on the CD-ROM. Depending on your marital status and whether or not you have children, you’ll select the will form that’s appropriate for you and carefully prepare a rough draft.

In Chapter 8, you’ll learn how to use your completed will draft to create the final version of your will. Continuing to follow the instructions in Chapter 8, you’ll sign and have your will witnessed, which completes the will-making process.

Chapters 9 and 10 cover what happens after you’ve made a will, including suggestions on storing your will and the possibility of making changes to it. Finally, Chapter 11 gives information about going beyond this book, by either using other Nolo resources or hiring a lawyer.

Introduction

This book is for people who want to make a basic will—nothing complex, no frills, just a valid will that does the job. It is for people who want to leave their property outright (no strings attached) when they die.

Following the step-by-step instructions in this book, you can create your own basic will that:

• leaves your property to the people and organizations you choose
• names someone to care for your minor children
• names someone to manage property you leave to minor children, including your own children, and
• names your executor, the person with authority to make sure that the terms of your will are carried out.

This book contains five sample will forms that are valid in every state and Washington D.C., with the exception of Louisiana (which has unique laws governing wills). These will forms have been carefully prepared to keep your work to a manageable amount.

Before you dive into making your will, first consider some preliminary will-making issues. First, is this the right will for you? The first section of this chapter will help you decide. Next, do you know the legal basics about making a will? Just to be sure, this chapter also gives you a quick tutorial of will law. Finally, how do you get started? The final sections of the chapter will show you how.