Before you make your will, consider what you own, how you own it, and what legal rules affect how you can leave it.
Though, you may not need to do this if you plan to leave your property in a lump—that is, without giving specific items of property to specific people—it makes little difference what you own and how you own it. That will be sorted out when you die, and the people you have named to take "all" your property will get whatever you own.
But read on if either of the following is true:
The first step is to take inventory—write down the valuable items of property you own. To help you with this task, use Nolo's Property Worksheet, which you can fill out and keep with you as a reference while you make your estate planning documents.
To state the obvious, you can leave only property you own through your will. That's why it's important to know how you own shared property. However, even some property you own should not be passed through your will.
In almost all cases, your will does not affect property that you have arranged to leave by another method. (There's an exception in the state of Washington; see below.)
Property with a right of survivorship. If you hold property in joint tenancy, tenancy by the entirety or community property with right of survivorship, your share of that property automatically belongs to the surviving co-owner after you die. A will provision leaving your share would have no effect unless all co-owners die simultaneously.
Property you place in a trust. Property you place in a trust passes automatically to the beneficiary named in the trust document; you cannot pass this property in your will. This includes property placed in a revocable living trust.
Property for which you've already named a beneficiary. There are many ways to pass property without a will or trust. You shouldn't include in your will any type of property on this list.
A note for Washington readers: The state of Washington has changed some of the rules discussed above. If you like, you can leave the following types of property in your will:
If you set up one of these devices for leaving your property and then later use your will to change the beneficiary, the property goes to the person you name in your will. However, if you designate a new beneficiary after you make your will—for example, by updating the paperwork for a pay-on-death account or changing your living trust—the gift in the will has no effect. (Wash. Rev. Code § 11.11.020.)
If you own property in another country, have an attorney help you with your estate plan. The laws of that country may affect how the property passes to beneficiaries, and owning property in another country may affect your estate's taxes. Choose a lawyer who has experience dealing with foreign property because the lawyer will need to understand or learn the other country's laws, as well as any international laws that might apply. If necessary, your lawyer can work with an attorney in that country to ensure that local rules are understood.
To be clear, you can use WillMaker to deal with property you own in any U.S. state, but if you own property in another country (or in any of the U.S. territories), you need help from an attorney.
If you have frozen embryos, eggs or sperm in storage, what will happen to them if you die? You may have already made a decision about this (knowingly or not) because fertility clinic and storage facility contracts often include provisions for what will happen to embryos and other genetic material in case of death of the parents or donors. However, if no plan is in place and if you want to make one, see an attorney for help. The law about who has a right to own, transfer, use or destroy embryos and genetic materials is new, changing and state-specific. You'll need to find an attorney who is current about the law in your state.
When you're thinking about a plan for your property, don't forget to consider the fate of your digital assets—the online accounts and digital files that will be left behind when you die.
Here are some things to think about:
To learn more, read Leaving Digital Assets Through Your Will.
And if you do have wishes about what should happen to your digital assets, make sure your executor knows about them and give your executor the information needed to access the accounts.
Also, your WillMaker will grants your executor the power to access and control your digital assets. Read more about this in An Executor's Access to Digital Assets.
Using WillMaker, if you leave property on which you owe money, the beneficiary who takes it at your death will also take over the debt owed on that property. This means the beneficiary of the property is responsible for paying off the debt. (But your survivors will not inherit debt not attached to property. For example, if you die with nothing to your name except credit card debt, your survivors will not be responsible for paying those bills.) If you don't want your beneficiaries to take over debt you owe on property, see a lawyer for help.
If you are not married or in a registered domestic partnership, and you own property with someone else, you probably own it in tenancy in common. This is the most common way for unmarried people to own property together. Each co-owner is free to sell or give away his or her interest during life or leave it to another at death in a will. To tell whether or not you own property as tenancy in common, check the deed or other title document; it should specifically note that the property is held as a tenancy in common.
If you are married or in a registered domestic partnership, a whole host of legal rules may affect what property you own jointly and separately. See Property Ownership Rules for Spouses.