Quick & Legal Will Book
Quick & Legal Will Book
Denis Clifford, Attorney
May 2014, 7th Edition
Your will - and peace of mind - made easy
Write a will that suits your needs with a minimum of fuss!
Here, you'll find all the forms and step-by-step instructions you need to create a valid will - one that is simple and straightforward, and protects your family and property after your death. With this book, you can make a will that lets you:
- name beneficiaries to inherit your assets
- choose a guardian for young children
- set up a trusts for minors
- name an executor (and a backup)
You'll also learn how to:
- choose appropriate witnesses
- finalize your will
- revoke or change your will if necessary
This book also explains basic estate planning, including steps you can take to avoid probate court. The updated 7th edition includes the latest changes in federal estate tax law.
"The most streamlined, yet thorough information available on how to write a valid will quickly and safely..." -Long Beach Press Telegram
- Will Form 1. Married With Child(ren), Property to Spouse
- Will Form 2. Married With No Children
- Will Form 3. Single, Divorced, or Widowed With Child(ren)
- Will Form 4. Single, Divorced, or Widowed With No Children
- Will Form 5. All-Purpose Will
- Beneficiary Worksheet
- Additional Specific Gifts
- Self-Proving Affidavits
- Self-Proving Affidavit: Form 1
- Self-Proving Affidavit: Form 2
- Self-Proving Affidavit: Texas
- Self-Proving Affidavit: Pennsylvania
- Self-Proving Affidavit: Michigan
- Will Codicil Form
Your Legal Companion for Making a Will
1. Making a Basic Will
- Is This Will Right for You?
- Wills 101
- Getting It Done
- How to Proceed
2. Your Beneficiaries
- Categories of Beneficiaries
- Shared Gifts
- Survivorship Period
- Simultaneous Death
- Imposing Limits on Your Gifts
- If You Want to Explain Your Decisions
3. Property Ownership
- Basic Rules for Giving Away Property
- Taking Stock of Your Property
- The Beneficiary Worksheet
- Types of Property Ownership
- Marital Property
- Naming a Personal Guardian
- Managing Minors’ Property
- Other Concerns About Children
5. Your Executor
- Choosing Your Executor
- No Bond Required
6. Estate Planning
- What Is Probate?
- Avoiding Probate
- Federal Estate Taxes
- State Taxes
- Second Marriages
- Other Property Control Matters
7. Preparing the Draft of Your Will
- Determine Which Form to Use
- Instructions for a Married Person—Form 1
- Instructions for Parents (or People Leaving Property to Children)—Forms 3 and 5
- Instructions for People Without Children—Forms 2 and 4
8. Preparing Your Final Will
- Making a Final Version
- Signing and Witnessing Your Will
- Self-Proving Affidavits
- A Sample Completed Will, Including a Self-Proving Affidavit
- Letters of Explanation
9. Storing and Copying Your Will
- Storing Your Will
- Making Copies of Your Will
10. Changing or Revoking Your Will
- When to Make a New Will
- Making Simple Changes in Your Will by Codicil
- Revoking Your Will
11. Going Further
- Other Will-Writing Options
- General Information on Estate Planning
- Probate-Avoiding Living Trusts
- Creating Documents for Health Care
- Creating a Durable Power of Attorney for Finances
- Using Lawyers
A. Using the Downloadable Forms
- Editing RTFs
- List of Forms
- Beneficiary Worksheet
- Additional Specific Gifts
- Self-Proving Affidavits
- Will Codicil
Making a Basic Will
Is This Will Right for You?................................................................ 4
Using a Basic Will........................................................................ 4
Making Your Own Will.................................................................. 6
Who Should Not Use This Book.................................................. 7
Wills 101.......................................................................................... 8
Who Can Make a Will?................................................................ 8
Will Requirements........................................................................ 9
Types of Wills............................................................................. 10
About Probate and Taxes........................................................... 11
Getting It Done............................................................................... 12
How to Proceed............................................................................. 13
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, DC, 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.
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.
You do not have to live in the United States to prepare a will that is valid in this country. To prepare a valid will if you live abroad, you must follow the formal will requirements presented in this book and maintain legal residence in a U.S. state. If you live overseas temporarily because you are in the armed services, your residence is the home of record you declared to the military authorities.
If you live overseas for business, education, or for the fun of it, you probably still have sufficient ties with a U.S. state to make it your legal home (“domicile” in legalese). For example, if you were born in New York, lived in New York, and are registered to vote there, then your residence is New York, for will-making purposes.
If your choice is not clear. If you do not maintain continuous ties with a particular state, or if you have homes in the U.S. and another country, consult a lawyer before preparing your will.
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 40s, 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 totalling $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.
Special needs trusts. Many Americans care for a child or other loved one with a disability who requires support from government programs. Money and property left directly to people with disabilities may disqualify them from government assistance. With Special Needs Trusts: Protect Your Child’s Financial Future, by Stephen Elias and Kevin Urbatsch (Nolo), you can create a special needs trust that provides 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.
Learn more about estate planning for second marriages. Estate Planning for Blended Families, by Richard E. Barnes (Nolo), provides a thorough discussion of issues that may arise when a couple in a second or subsequent marriage is deciding how each wants to leave his or her property.
- 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 do-it-yourself resources that address concerns not covered by this book.
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.
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.
Identifying Your State
Your state’s laws affect a number of will-related issues, including probate procedures, marital property ownership, and state inheritance and estate taxes. Most people are clear about which state they reside in. However, if you live in two or more states throughout the year, choose the state in which you are the most rooted as your state of residence. For instance, choose the state where you:
- are registered to vote
- register your motor vehicles
- own real estate or other valuable property, or
- maintain a business.
Types of Wills
Formal wills are printed out from a computer, 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 and Tennessee are the only states to authorize an “electronic will”—that is, a will created and stored exclusively in an electronic format, usually on a computer. (An Ohio probate court has also upheld a will that had been signed with a stylus on a tablet 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 also 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 almost certainly don’t have to worry about federal estate taxes either. Theoretically, the estate of every person who dies is subject to federal estate taxes. However, in 2014, the federal estate tax exemption allows $5.34 million worth of property to be transferred free of U.S. tax—and the result is that only the estates of the very wealthy end up actually owing federal estate tax.
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.
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 sophisticated planning methods. 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 minor. 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.”)
What Happens If You Die Without a Will?
If you die without a valid will (or other valid property transfer device), your state law specifies who gets your property. All state laws divide a person’s property among close family members. No flexibility is allowed. Perhaps worse, the court will appoint the person who will supervise the distribution of your property (and receive a fee from that property for services)—it won’t be someone you’ve chosen. Also, if you have minor children and the other parent isn’t involved, a court would appoint a guardian for your children without your input. Certainly, there have been instances where such a person was far more concerned with extracting hefty fees from the property than with the children’s well-being. Enough said?
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 the five will forms in this book, which are in Appendix B and can be downloaded from this book’s special page on Nolo.com. (Instructions are in Appendix A.) 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 create the final version of your will. You’ll sign it and have your will witnessed, completing 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, either by using other Nolo resources or hiring a lawyer.
How to Make Your Will: A Checklist
Decide who you want to inherit your property.Choose who you want to serve as your executor.
If you have young children, choose personal and property guardians for them.
Pick the right will form.
Make a draft of your will.
Check it over carefully.
Print out a final copy.
Sign the will in front of two witnesses.
If your state uses a self-proving affidavit, have your witnesses sign it in front of a notary public.
Store your will in a safe place, where your executor will have access to it.
Make a codicil or new will if your life situation changes.
This Book Comes With a Website
Nolo’s award-winning website has a page dedicated just to this book, where you can:
DOWNLOAD FORMS - All forms in this book are accessible online. After purchase, you can find a link to the URL in Appendix A.
KEEP UP TO DATE - When there are important changes to the information in this book, we will post updates
And that’s not all. Nolo.com contains thousands of articles on everyday legal and business issues, plus a plain-English law dictionary, all written by Nolo experts and available for free. You’ll also find more useful books, software, online services, and downloadable forms.