Why Every Adult Needs a Will and What the Legal Requirements Are

Creating a death will is essential for anyone with assets, as it ensures that your assets go to the people you choose. This is particularly important if you are in a second marriage and have children from a previous relationship. Contrary to common belief, writing a will is not just for the wealthy and is more affordable than you may think. If changes are needed, you can update or revoke your will at any time before your death. If changes are required to your will, you can draft a new one or add a codicil. Taking these steps provides peace of mind and clarity for your loved ones. This article highlights the importance of different types of wills, how to draft and amend a will, and the consequences of not having a legal will.

What Is a Will?

A will is a valid legal document written by the will-maker (also called the testator), outlining how their assets and property will be distributed after their demise. It also helps the will-maker to name one or more persons (called executors), to manage the estate until its final distribution.

A will is necessary to allow the testator to determine to whom, how, and when financial accounts and personal property will be distributed. For persons with minor children, a will enable them to appoint a guardian for their children to ensure they are financially looked after.

There are four major types of wills. These are:

• Simple Will: Simple wills are common among will-makers. This type of will names an executor to manage the will maker's estate, who will be responsible for administrative tasks, bank account closure, offsetting outstanding loans and debts, and distributing personal property, money, and real estate. This type of will is commonplace because it suits people with uncomplicated estates and no complex financial issues to address.
• Testamentary Trust Will: Testamentary Trust is a trust stated within a will where the will-maker appoints trustees and outlines the terms of the trust. This type of will gives trustees flexibility and discretion to decide how and when to distribute assets in their estate to their beneficiaries. A trustee may be a family member, a friend aged at least 18, or a person chosen by a legal accounting organization or trustee company as preferred by the will-maker. The trustee is the legal owner of the assets named in a testamentary trust will. 

  The trust in a testamentary trust protects and holds assets, including cash, bonds, shares, property, and valuables, such as furniture, paintings, and jewelry. The assets held in the trust can generate dividends and interests and produce capital gains as they increase in value.

  Testamentary trusts may be used to create a long-term benefit for a beneficiary, where the individual benefits from an asset for several years or over the remainder of their life. In such an instance, the beneficiary does not inherit the trust capital but only benefits from the interest accruing from the capital. For instance, a beneficiary of a testamentary trust may benefit by earning interest on invested funds or receiving income from the rental of a property. After the death of the beneficiary of a testament trust, the asset may be passed on to charities, family members, or other beneficiaries, depending on the conditions specified in the will.

• Joint Wills: A joint will is a will shared by two persons, usually spouses, serving as the last testament and will of the will makers. Couples who share the same assets and beneficiaries often use joint wills to decide how their assets will be distributed when they die. When creating a joint will, the persons involved must determine which assets to include and what must be done with such assets when they both pass away. For instance, a couple using a joint will may decide that when a party dies, all of their assets automatically go to the surviving spouse. Then, after the surviving spouse passes away, the remaining assets will go to their children or named beneficiaries. 

  A joint will offer the advantage of reassuring the surviving spouse that they can retain assets accumulated in the union. The spouses can also be assured that the assets will be inherited by the children they share, even if one spouse remarries after the death of the other spouse.

  However, a joint will may be disadvantageous in certain instances. For example, a joint will cannot be revoked or modified after the death of one spouse even if their circumstances change. Also, some states do not provide for joint wills. Probate courts sometimes find joint wills complicated, so the judges invalidate such wills or separate them for the parties involved.

• Living Wills: A living will is a legal document specifying the medical care type preferred by the will makers if they cannot communicate their wishes. The will provides specific instructions for medical care or termination of medical support, such as when the will-maker is in a coma, cannot speak, write, sign coherently or rationally, or is on life support. A living will can address potential end-of-life care decisions such as cardiopulmonary resuscitation, mechanical ventilation, tube feeding, dialysis, antibiotics or antiviral medications, palliative care, organ and tissue donations, and donating the will maker's body for scientific study. Living wills may be created without the help of an attorney. Some hospice facilities, nursing homes, and hospitals have living will forms that may be filled out.

Other than these four major types of legal wills, less common wills include holographic, pour-over, and oral wills: 

• Holographic willsare handwritten wills made without a legal presence or witness. Pour-over wills are blanket-like, ensuring all will-maker's assets are accounted for after passing away. 
• Pour-over will provide instructions for all assets to be moved into a pre-existing trust, allowing the executor of the will to control all assets, and not only the ones already included in the trust. 
• Oral wills, also called nuncupative wills, are verbal instructions per the distribution of assets. Oral wills are not usually considered valid but may be permitted if some strict requirements are fulfilled, especially if the will-maker's death is imminent and there is not enough time to undergo the formal will-making process.

Key Components of a Will

The following are essential components of a legal will:

Executor

For a will to be valid, the will-maker must choose an executor. Choosing an executor refers to selecting a trustworthy and responsible individual, who may be a friend or professional, to carry out the instructions in the will and manage the will-maker's estate. An alternate or secondary executor may be selected if the primary choice opts out of serving as an executioner. A court can also appoint a person to handle a will-maker's estate if no executor is named in their will.

Beneficiaries

The beneficiaries section of a will is the heart of the document. A testator may designate specific beneficiaries, residuary beneficiaries, and contingent beneficiaries. If a testator chooses specific beneficiaries, they must explicitly name the entities or individuals, assigning particular assets to each beneficiary. Residuary beneficiaries are persons who will receive what remains of the testator's estate after all specific debts, expenses, gifts, and taxes have been distributed. Contingent beneficiaries are persons who receive benefits or assets when particular conditions stated in the will are met. For instance, if the primary beneficiary cannot or is unwilling to inherit a certain property, such a property will be assigned to a contingent beneficiary.

Assets and Property

Since the purpose of a will is to state how assets and property will be distributed after the testator's death, it is paramount that the will contains a list of all assets and property owned by the testator. Property refers to real estate or real property. Therefore, if the testator owns a rental property, a house, or land, they must be listed in the property section of the will. Assets, on the other hand, refer to other personal property that is not real estate or real property. Hence, assets can be money, investments, vehicles, artwork, jewelry, and other items the testator may want to ensure are transferred to beneficiaries after their demise.

Guardianship for Minors

One of the key goals of a will is to ensure persons who are vulnerable in the testator's life are well covered after the will-maker's death. While guardianship is not an asset, it remains a big part of why wills are created. Hence, if a will-maker has kids not yet of legal age (typically 18), such a will document will include the appointment of a guardian for the minors. By appointing a guardian, the testator grants the individual the legal authority to care for their minor children if they pass away. Taking care of minors includes making decisions about their healthcare, education, and general welfare.

Legal Requirements for a Will

Although the specific requirements that make a will document valid vary from one state to the other, the following are typical legal requirements for a will:

Age and Mental Capacity

The typical testament capacity age in the United States is 18. The testament capacity age is when an individual is regarded to have the legal capacity to create a will. Also, the testator is required to possess a sound disposing mind at the time of creating a will document. Note that exceptions may be made to the testament capacity age, such as when an individual is emancipated, married, or serving as a United States military member.

Witnesses

Most states in the United States require that two or more witnesses be present when the testator signs the will. One witness may be required to attest to seeing the other witness sign. Typically, witnesses sign an affidavit to authenticate the will and their signature.

Signatures

For a death will to be valid, it must be signed by the testator in the presence of two witnesses. Generally, witnesses must watch the testator sign in each other's presence. This helps to ensure witnesses cannot manipulate pressure on the testator. Afterward, each witness must provide their own signature in the testator's presence. Most states require that witnesses be at least 18 years old. While specific requirements may vary per state, many states do not allow heirs, such as family members or surviving spouses and named beneficiaries, to act as witnesses in signing a will. Furthermore, the lawyer who creates the will usually cannot act as a witness.

How to Make a Will

Once you establish the need to draft a will, the next step is to determine how to draw up the will. You can make a will via an online service, by yourself, or by legal assistance.

DIY Wills vs. Legal Assistance

While seeking legal assistance may help create a robust will, you can choose to create your own by yourself without the help of an attorney. A DIY will can help you save a lot of money as it can be costly to hire the services of a wills and estate attorney. A DIY will can be written quickly and does not require the presence or signature of a witness. Also, if you have a simple family dynamic (no divorces or remarriages), opting for a DIY will may be an attractive option.

However, DIY will have certain disadvantages. DIY wills may be contested after the testator's death, which may cost a lot of money as the probate process drags out. Furthermore, there is a high chance of misunderstanding the language in the DIY will, which could lead to inadvertent errors. Several DIY will templates online fail to consider specific estate planning needs, such as avoiding estate taxes and not fully catering to the needs of minor children.

A DIY will may not be the best option for a will-maker with a complex family circumstance, such as when the testator has children from other marriages. If a will fails to address significant matters like taxes, debts, and guardianship, it can have detrimental impacts, such as impaired credit, legal issues, escalating interest on the debt, and reduced inheritance for the beneficiaries.

Using Online Service

Considering the volume of paper operations that have moved online, it is no surprise that creating a will can now be done online and is becoming popular. One of the perks of creating wills online is the convenience it offers. Creating a will online is an attractive option for those with busy schedules and unable to visit an attorney.

Creating a will document online is easy on the wallet, as it costs less than a trip to an attorney's office. Online platforms also make the will creation process easy and less intimidating for users by providing a step-by-step guide.

Despite the pros of using an online will creation system, the absence of one-on-one interaction with an attorney may lead to misinterpretations. Misapplying legal concepts may lead to disastrous consequences. Security may also be an issue for online will creation systems. Information may be leaked in data breaches if such a platform does not have robust security systems. Furthermore, online will systems may be unable to accommodate complex financial and family dynamics. In such instances, the advice of a legal professional may be invaluable.

Steps to Drafting a Will

When creating a will, you can draft it by following these steps:

• Determine how to write the will:You can write your will typically in one of three ways: via an online service, by yourself, or with the help of an attorney. While writing your will with an online service or by yourself does not make it legal, working with an experienced attorney is the most traditional method and can help ensure your will complies with the laws in your state and is comprehensive.
• Choose your executor: Selecting an executor of your will is one of the most important steps in the process, as the executor is the person charged with administering your will and distributing your assets. If you are not using an estate planning attorney, you should consider assigning someone you trust as the executor of your will.
• Determine your beneficiary: To ensure your assets and property are distributed in accordance with your wishes, you must name beneficiaries as the parties designated to be assigned the assets. You may assign separate assets to different beneficiaries or leave them all for a single beneficiary. Ensure you write the full names of each beneficiary to avoid confusion and challenges later. If you have no relatives, you may choose a religious organization, business, or charity to be assigned your assets after you pass away.
• Assign a guardian to young children: If you have kids under 18, your will should include the name of a person to act as a guardian for the children. You should select a guardian you trust with your kids' future and state the individual's full legal name in the document.
• Write instructions for your assets:To undertake this step, first, list all your assets and property. Afterward, assign each asset to a beneficiary and include specific instructions for how you would like the executor of the will to distribute the estate. Some will makers may prefer that the executor gathers all beneficiaries together for a formal will reading, while others want the executor to meet separately with each person named as a beneficiary. Furthermore, you may include explanatory notes stating why you chose each beneficiary for the assets distributed to them.
• Sign the will: Your signature is what makes the will document legally binding. When signing the will, you will need two individuals and witnesses to sign it. Usually, these witnesses must be disinterested parties to the will. It is possible that your state requires a self-proving affidavit. This affidavit needs two witness signatures and must be notarized to be deemed legal. The self-proving affidavit attests that you are of sound mind and do not lack the mental capacity to make a will.

Updating and Changing a Will

Several reasons may necessitate updating and changing a will. These reasons include life events, changes in the testator's mind about beneficiaries, and changes in assets and property.

When to Update

• Life Circumstances:When you marry, have a new partner or remarry, divorce, have a new child, or adopt a child, you may consider updating your will to accommodate new loved ones in the distribution of your assets and property. In the case of a divorce, you can change your will to leave your former spouse with no assets or property or reduce the distribution to the spouse. Also, if the executor or trustee of a will dies, the will document will be updated to reflect a new executor or trustee.
• Relocation: If you move states or countries, you may need to update the will to comply with the specific will laws of the new jurisdiction. A will document must comply with local laws to be effectively administered.
• Change in assets and property conditions: If your will document indicates a distribution of your property in percentages, you may not need to update it when you lose or acquire more assets and property. However, if you assign specific assets or property to a beneficiary but no longer own it after some time, you must update your will to remove the asset or property and assignment from your will. Also, if you acquire more assets or property after the last change on your will, you will need to update the will to include a mention of the property and to whom it should be assigned after you pass away.
• Change in mind about the beneficiaries on your will: You may change your mind about assigning a specific asset or property to any of the beneficiaries stated on your will for several reasons. For instance, after creating and signing your will, you may have more information that changes your mind as to how much of your estate a particular beneficiary deserves. Consequently, you may update your will to increase or reduce what may be distributed of your estate to a beneficiary. Furthermore, you may decide to remove a beneficiary altogether.

Process for Amending a Will

If you have a reason to update or change a will, you can do so by means of a codicil or revoking the will completely. If you only need to make a minor change to a will, you can make an amendment via a codicil. A codicil is a legal document allowing an individual to make additions, deletions, or specific changes to an existing will without needing a new will. When making a codicil, it must be witnessed, dated, and signed, as it is done when making a will. Typically, when a codicil is used, both the codicil and the will are still considered valid.

When making major changes to a will, it is recommended that you revoke the existing will and create a new one entirely. You may revoke an existing will, too, even if you only want to make a minor change. Some states in the United States allow the use of specific forms to revoke existing wills and to create new wills. After revoking a will, you will include a statement in the new will stating that all previously made codicils and wills are revoked. However, you should consider destroying all previous codicils and wills after creating a new will to avoid challenges to the new will.

Consequences of Not Having a Will

When a person dies without a death will, the situation is referred to as intestacy. This means your assets and property are unlikely to end up where you would have preferred. Hence, winding up your estate may take months or even several years to complete.

Intestacy Laws

In intestacy, the assets are distributed by the determinations of a state probate court. Usually, the state probate court will initiate the estate administration process by appointing an administrator who acts like an executor to oversee the dead person's estate. Afterward, the administrator will compile a list of all assets and property of the deceased, offset any debts, and finally distribute the remaining assets to persons considered beneficiaries by a probate judge.

The appointed administrator will locate legal heirs of the dead individual, such as the surviving spouse, parents, brothers and sisters, and other relatives. The probate court will then decide the order in which the located heirs inherit from the decedent's estate.

Distribution of Assets

The laws regarding the distribution of assets in intestacy vary from state to state. However, in most cases, the assets and property are distributed among the surviving spouse and children of the decedent. Some states in the United States, such as California, Nevada, Texas, Louisiana, and Wisconsin, consider spouses joint owners of property acquired in the marriage. Hence, the surviving spouses are typically entitled to no less than half of the decedent's estate in such states. In most common law states in the United States, the distribution hierarchy of a decedent's estate also begins with the surviving spouse. Per the probate court's determination, surviving spouses in such states may be assigned less than half or more than half of the decedent's estate. If the deceased left no child or grandchild, the probate court may assign the entire estate to the surviving spouse.

If the deceased was widowed or unmarried at the time of death, the court will likely distribute the decedent's estate among surviving children before other relatives. If a next of kin cannot be located, the assets will be assigned to the state.

If a deceased held a joint account with the right of survivorship or jointly owned propertywith another individual, the joint asset automatically belongs to the surviving parties. However, friends of the deceased are not typically part of the beneficiaries list under probate laws for intestate estates.

Generally, intestacy laws follow this hierarchy when distributing a decedent's estate:

• Civil partner or spouse
• Children or grandchildren
• Parents
• Brothers and sisters
• Grandparents
• Uncles and aunts

Potential Family Disputes

Dying intestate, that is, dying without a legal will, can be the source of a feud between family members. In several families, when a relative dies without a will, the family disputes who should inherit the deceased's assets and property. Common reasons why family members fight in intestate matters include:

• Disagreement over the executor's identity:If no death will exist, the court typically appoints an executor. However, family members may fight over who should be appointed as an administrator over the decedent's estate.
• Unfair distribution of assets and property: If no will exists, assets and property distribution is left to the state's laws. The probate court's decision may not align with the deceased's wishes, causing in-fighting among family members.
• Dispute over guardianship of children: If minors are involved in an intestacy matter, family members may disagree over who should be the guardian of the minors
• Disagreement over debts and taxes: Debts owed by a deceased person must be paid before the decedent's estate can be distributed. Disputes may arise over who should be responsible for these debts.

A will is important to help ensure that the right persons inherit your assets after you die. You can create a will by yourself, using an online system, or, as it is traditionally done, with the help of an estate planning attorney. A death will can be a simple will, living will, joint will or testamentary trust will. Each will type is useful in different scenarios.

When drafting a will, key components include information about the executor, beneficiaries, assets and property, and guardianship for minors. Before a will may be regarded as valid, it must have been created by someone of legal age and sufficient mental capacity. It must also be signed in the presence of two witnesses, who must also sign themselves.

A will may be changed in light of new information, which causes the testator to change his mind or when other life events occur, such as when a beneficiary dies, or the testator remarries.

It is important that you create a will once you are of legal age. Without a will, you risk potential family disputes and inappropriate distribution of your estate after you pass away